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How Does Child Custody Work in Utah if the Parents Are Not Married?

Child custody is determined based upon the same statutory factors regardless of whether the parents are divorced or were never married. Those statutory factors are found at Utah Code §§ 30-3-10, 30-3-10.2, and 30-3-35.2. Those factors are (some criteria in some sections are duplicated in other sections):

(1)        If a married couple having one or more minor children are separated, or the married couple’s marriage is declared void or dissolved, the court shall enter, and has continuing jurisdiction to modify, an order of custody and parent-time.

(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.

(3)        There is 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 when there is:

(a)        evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse involving the child, a parent, or a household member of the parent;

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

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

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

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

(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.

30-3-35.2.  Equal parent-time schedule.

(1)

(a)        A court may order the equal parent-time schedule described in this section if the court determines that:

(i)         the equal parent-time schedule is in the child’s best interest;

(ii)        each parent has been actively involved in the child’s life; and

(iii)       each parent can effectively facilitate the equal parent-time schedule.

(b)        To determine whether each parent has been actively involved in the child’s life, the court shall consider:

(i)         each parent’s demonstrated responsibility in caring for the child;

(ii)        each parent’s involvement in child care;

(iii)       each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv)       each parent’s assistance with the child’s homework;

(v)        each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

(vi)       each parent’s bond with the child; and

(vii)      any other factor the court considers relevant.

(c)        To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i)         the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

(ii)        each parent’s ability to assist with the child’s after school care;

(iii)       the health of the child and each parent, consistent with Subsection 30-3-10(6);

(iv)       the flexibility of each parent’s employment or other schedule;

(v)        each parent’s ability to provide appropriate playtime with the child;

(vi)       each parent’s history and ability to implement a flexible schedule for the child;

(vii)      physical facilities of each parent’s residence; and

(viii)     any other factor the court considers relevant.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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