Child Custody in Utah – Myths and Misunderstandings No More!

There were many myths and misunderstandings surrounding what child custody means and how it is applied state of Utah in divorce and other child custody actions.  Not anymore, just read on.

First you need to understand what “child custody” means in a legal sense. In Utah, there are two different kinds of child custody: physical custody and legal custody.

“Physical custody” is not defined as “which parent the child lives with” because, when you think about it, the rather vague definition.   “Physical custody” means, in legal terms and specifically, where the child stays with a parent overnight.  If a child spends 30% of the year or less with a parent overnight, that parent would be defined as a “noncustodial” parent.  If a child spends more than 30% of the year with both parents overnight, and both parents contribute to the expenses of the child in addition to paying child support, then those parents would be defined as “joint custodians” of their child.

“Legal custody” is the right, privilege, duty, and powers of a parent to make specific decisions regarding a child’s education, health care, moral and religious upbringing, and other matters pertaining to the overall welfare of the minor child.  Courts can award sole or joint legal custody to parents.  Some people believe, erroneously, that the only kind of child custody issue a court considers is physical custody, and that just because a child’s parents no longer remain married or living together a parents parental rights of legal custody don’t or can’t change.  As you see from reading this paragraph, the parent can lose his or her rights of legal custody if the court orders it.

Now that you understand the difference between physical custody and legal custody, you need to understand the different kinds of physical custody awards a court can make in Utah.

“Sole Custody” (sometimes also called “Primary Custody”) is where the court orders that the child or children spend 70% or more of their overnights in the physical care and custody of a parent.  Sole custody used to be the norm in Utah and in most states.  Typically, mothers were awarded sole custody of the kids far more often than were fathers.  But this is changing, both in Utah and across the country. The trend is toward joint custody unless there is a compelling reason not to award joint custody.

 “Joint Custody.” Many people, however, have the wrong concept of what joint physical custody can mean in Utah.  It is understandable if you think that joint custody means equal periods of time that the children spend in the custody of both parents, i.e., 50-50.  You can be considered a joint physical custodian in Utah and still only have the children with you 111 overnights per year because the Utah Code defines a joint physical custodian as a parent who has the children with him or her overnight more than 30% of the year.  30% of 365 days a year equals 109.5 days, so to have the children in your physical custody more than 30% of the year requires you to have them stay with you at least 111 overnights annually.

“Split Custody” can only apply when there are two or more children.  Split custody arises where some of the children reside with one parent more than the other.  Rather than moving as a unit between one parent and the other, they are “split up,” between parents.  Split custody is rare and most commonly ordered to keep siblings who don’t get along well with each other separated.

Now that you know how to define child custody and its various types, but take a moment to discuss child custody litigation.  Child custody is one of the most hotly contested issues in a divorce or child custody case between unwed parents.  Although it shouldn’t, fighting over custody can consume tens or even hundreds of thousands of dollars in some cases, and can make cases last years longer than they would otherwise have were children not involved.

Many flaky attorneys (and they are legion) will tell you that child custody is still, in this day and age, a foregone conclusion. And by that what they mean to persuade you to believe is that in the majority of cases sole custody of the children is awarded to mothers.  There is an element of truth to this.  Although most of them will never admit it, I am of the opinion that some judges and court commissioners in Utah are biased in favor of mothers when it comes to making child custody awards. Still, as I stated above, the trend in Utah and throughout the country is toward joint physical custody awards, unless there is a compelling reason or reasons arguing against it.  Unfortunately, this does not mean that getting an award of joint custody is very easy, but where there is a will there is almost always a way, for a fit parent.

You can stop reading here, but if you’d like to know more about what criteria the courts consider when making child custody awards, you will find this selection of some Utah child custody case law summaries very helpful to developing your understanding:

Davis v. Davis, 749 P.2d 647, 648 (Utah 1988)

Reviewing the trial court’s findings and conclusions pertaining to the custody award in light of the foregoing standard, we conclude that no abuse of discretion occurred. The trial court considered a number of factors in awarding custody to James. Principal among them were that James had been J.Z.’s primary caregiver for over a year and had provided a very stable environment. In considering competing claims to custody between fit parents under the “best interests of the child” standard, considerable weight should be given to which parent has been the child’s primary caregiver. Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986).

Penny, however, contends that the court’s order was improper because it had the effect of rewarding James for his exploitative conduct in securing the earlier hurried divorce and custody order. But for that order, he would not have had custody of J.Z. for the year in question. The law does not, when determining custody of a child, attempt to reward or punish one parent or the other. This Court has repeatedly stated that the child’s best interests are to be the primary focus of a custody decision. See Sanderson v. Tryon, 739 P.2d 623, 626 (Utah 1987); Fontenot v. Fontenot, 714 P.2d 1131, 1132 (Utah 1986); Becker v. Becker, 694 P.2d 608, 610 (Utah 1984); Mitchell v. Mitchell, 668 P.2d 561, 564 (Utah 1983); Hyde v. Hyde, 22 Utah 2d 429, 431, 454 P.2d 884, 885 (1969). Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question. See, e.g., In re Halloway, 732 P.2d 962, 971–72 (Utah 1986).

In the instant case, however, there is no finding that James acted wrongfully in obtaining custody of J.Z. In fact, Penny actually wanted her husband to take custody at the time of the initial divorce. Difficulties she was encountering in caring for the child were one of the reasons she sought the divorce. In light of her reasons for seeking a divorce and her emotional instability during the fall of 1984, there is no reason to believe that Penny would have acted differently toward J.Z. or that the trial court would have awarded her custody if the initial proceedings had been conducted in any other fashion. She has now changed her mind, but that does not mean that the court that granted the second divorce should have discounted the fact that her husband had actual custody of the child for a substantial period and functioned well as a primary caregiver. J.Z. has resided with his father since August of 1984. He has lived in the same house since he was born. Ample evidence was presented to support the trial court’s determination that J.Z. lives in a stable, secure environment and that he and James have a loving relationship.

Penny, on the other hand, failed to present any evidence to support her contention that J.Z.’s best interests would have been furthered by placing J.Z. with her. Although she presented testimony that she is now emotionally stable and no longer depressed, the trial court was not persuaded that her present stability was sufficient to offset its concerns about her ability to provide a stable environment for J.Z. The court found that Penny was still in a period of reconstruction from her earlier emotional difficulties. Based on the evidence presented, the trial court’s award of custody to James was within its discretion.

Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986)

Plaintiff cross-appeals from that portion of the divorce decree awarding custody of the older son of the marriage to defendant and requests that both children be awarded to her. This Court’s judicial preference for the mother, reaffirmed in Nilson v. Nilson, 652 P.2d 1323 (Utah 1982), and Lembach v. Cox, 639 P.2d 197 (Utah 1981), is cited in support. We acknowledged in dictum the continued vitality of that preference in Jorgensen v. Jorgensen, 599 P.2d 510, 511 (Utah 1979), “all other things being equal.” We believe the time has come to discontinue our support, even in dictum, for the notion of gender-based preferences in child custody cases. A review of the cases cited by plaintiff shows that “all other things” are rarely equal, and therefore this Court has not treated a direct challenge to the maternal preference rule in over five years. In the unlikely event that a case with absolute equality “of all things” concerning custody is presented to us, the provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.

Several courts have declared the maternal preference, or “tender years presumption,”  unconstitutional. As early as 1973, the New York Family Court, Kooper, J., held that “application of the ‘tender years presumption’ would deprive [the father] of his right to equal protection of the law under the Fourteenth Amendment to the United States Constitution.” State ex rel. Watts v. Watts, 77 Misc.2d 285, 350 N.Y.S.2d 285, 290 (1973). Citing several studies which determined that a child needs “mothering” rather than a mother, id., the court determined that the presumption does not serve a compelling state interest. Id., 350 N.Y.S.2d at 291. Although Watts used a strict scrutiny test, it is equally doubtful that the maternal preference can be sustained on an intermediate level of review. See Hyde, Child Custody in Divorce, 35 Juv. & Fam.Ct.J. 1 at 10 (Spring 1984). This is particularly true when the tender years doctrine is used as a “tie-breaker,” as it is in Utah, because in that situation the Court is “denying custody to all fathers who … are as capable as the mother…. [W]hile over inclusiveness [sic] is tolerable at the rational basis level of review, it becomes problematic at the heightened level of scrutiny recognized in gender discrimination cases.” Id. at 11 (emphasis added; footnotes omitted).

Even ignoring the constitutional infirmities of the maternal preference, the rule lacks validity because it is unnecessary and perpetuates outdated stereotypes. The development of the tender years doctrine was perhaps useful in a society in which fathers traditionally worked outside the home and mothers did not; however, since that pattern is no longer prevalent, particularly in post-separation single-parent households, the tender years doctrine is equally anachronistic. See Hyde, supra, at 6. Further, “[b]y arbitrarily applying a presumption in favor of the mother and awarding custody to her on that basis, a court is not truly evaluating what is in the child’s best interests.” Id. at 10.

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent. See generally Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 Fam.L.Q. 1 (Spring 1984).

In accord with those guidelines, we disavow today those cases that continue to approve, even indirectly, an arbitrary maternal preference, thereby encouraging arguments such as those made by the cross-appellant in this case.

Hudema v. Carpenter, 989 P.2d 491 (1999 UT App)

Mother, who had sole physical custody of child with shared joint legal custody with father, moved to increase child support after father moved to another city to accept new job at higher salary. Father moved to modify custody based on changed circumstances. The Second District Court, Farmington Department, Jon M. Memmott, J., awarded sole physical custody to father with structured visitation. Mother appealed.  The Court of Appeals held that the trial court did not err in ruling that there was a sufficient change of circumstances to warrant modifying custody; trial court abused its discretion in determining that religious compatibility and comparison of moral character favored awarding custody to father; it was within the court’s discretion to rule that child’s interests were best served by awarding custody to father because child’s stronger bond with his father and the increased kinship ties near father’s home.

Trial court generally may not consider evidence of the child’s best interests until it finds changed circumstances that will permit modification of custody award. U.C.A. § 30–3–10.4.

When a custody order is entered pursuant to a stipulated agreement, rather than a prior adjudication of the child’s best interests, res judicata policy underlying rule requiring changed circumstances to modify custody award is at a particularly low ebb. U.C.A. §, 30–3–10.4.

Legal conclusion that changed circumstances permitted modification of custody award was not abuse of discretion based on findings that both parents had remarried and moved to new communities separated by a distance that prohibited child’s daily contact with both parents, and that child had begun school, making extended periods of visitation unworkable during most of the year. U.C.A. §, 30–3–10.4.

Generally in determining whether change of custody is in child’s best interests, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Continuity of placement is at critically important end of the spectrum of factors used in determining whether child’s best interests favor change in custody when the child is thriving, happy, and well-adjusted. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Existing child custody arrangements in which the child has thrived should be disturbed only if the court finds compelling circumstances. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Interest in stability, while still favoring mother’s continued sole physical custody of child who was well-adjusted in existing arrangement did not preclude change of custody where mother had changed interpersonal dynamics of her household by remarrying and by moving from child’s lifelong home to a new home in another state. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Trial court abused its discretion in concluding individual factor of religious compatibility favored modifying custody award to grant father sole physical custody of child on basis that mother, while of same religion as child and while encouraging child’s religious participation, was not as active a participant as father in church, as there was no evidence that mother’s religious beliefs or practices were detrimental to child’s welfare. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Only when the parents’ religiously based actions, either in their own right or by conflicting with the child’s religious identity, negatively impact the child, as by compromising his health or safety, or by interfering with the stability and continuity in his life, or by diminishing the child’s self image, should the religious compatibility factor be used to favor custody by one parent over the other. U.C.A. §, 30–3–10.4; Judicial Administration Rule 4–903.

Moral standards’ are a statutory consideration that may be relevant to a custody determination to the extent they affect the children’s best interests. U.C.A. §, 30–3–10(1).

In absence of any evidence that mother’s short period of premarital cohabitation adversely impacted on child’s best interests, trial court exceeded its discretion in concluding that a comparison of mother’s and father’s moral character favored changing custody of child to father based on mother’s move to out-of-state home of her current husband six weeks before her marriage to him. U.C.A. §, 30–3–10(1).

Finding that award of custody to father would promote child’s kinship ties was within trial court’s discretion, based on evidence that father resided near extended family and with child’s half-sister, while mother had no extended family residing near her out-of-state residence. U.C.A. §, 30–3–10.

Presence of extended family and promotion of kinship ties, while factor in determining child’s best interests, is alone relatively unimportant and cannot override interest in preserving stability. U.C.A. §, 30–3–10.

Child’s bond with a particular parent is at the significant end of the spectrum in determining best interests of child on motion for custody modification and should weigh heavily in the court’s determination.

When trial court finds that child has bonded more closely with one parent than another, the court is within its discretion in concluding that the difference in bonding overrides the general interest in stability in determining whether child’s best interests favor custody modification, especially where the prospect of stability is diminished. U.C.A. §, 30–3–10.

Trial court did not abuse its discretion in determining that child’s best interests be served by modifying custody to award father primary physical custody based on child’s closer bond with his father, which court found outweighed interest in preserving existing custodial arrangement where continuity had been disturbed by both parents’ remarriages and moves to new locations. U.C.A. §, 30–3–10.

Clarke v. Clarke, 292 P.3d 76, 78 (Utah App., 2012

Husband first challenges the district court’s decision to award Wife sole legal and physical custody of their children. In reviewing “initial custody awards, we give trial courts broad discretion. So long as that discretion is exercised within the confines of the legal standards we have set … we will not disturb the resulting award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (citations omitted). “The trial court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Indeed, “[o]ur statutes and case law are consistent and clear with respect to the considerable discretion allowed the trial court in child custody matters, with the controlling factor being that which is in the best interest and welfare of the minor child.” Rice v. Rice, 564 P.2d 305, 306 (Utah 1977); see also Utah Code Ann. § 30–3–10(1)(a) (Supp.2012) FN1 (“In determining any form of custody, the court shall consider the best interests of the child ….”); id. § 30–3–10.2(2) (2007) (listing several factors that are relevant to determining “the best interest of a child”); Mecham v. Mecham, 544 P.2d 479, 480 (Utah 1975) (explaining that in determining custody, the best interest of the child “is of paramount importance”). The determination of the best interest of the child requires consideration of a number of nonexhaustive statutory factors, which have been supplemented and expanded by our case law. See Utah Code Ann. §§ 30–3–10(1)(a)(i)–(iv), –10.2(2); see, e.g., Tucker, 910 P.2d at 1215 (listing numerous factors the district court may consider to determine the best interest of the child).

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