Does the Judicial System Favor Custody of Children to the Lady? What Is the Judge’s Decision Based Upon?
Generally, yes, although the gratuitous (and sexually discriminatory) practice of indulging a default preference for the mother has steadily weakened substantially over the last 40 years and counting. More and more jurisdictions are adopting a presumption that joint physical custody of the children will be awarded, unless it can be shown by a preponderance of the evidence (“preponderance of the evidence” means that the evidence shows it is “more likely than not” that a claim is true) that joint physical custody is not in the child’s best interest, which usually (but not always) means that a parent has been shown unfit to exercise joint physical custody).
Every jurisdiction has a list or lists of factors it requires the courts to consider, and most of those factors are the same, though each jurisdiction may value some factors more than it does others. Here is the list of factors Utah requires a court to consider when determining whether the child custody award will be a sole custody award or a joint custody award. Some factors in some sections of the Utah Code overlap with others, so where they do, I will only mention them once (buckle up, it’s a very long list):
Utah Code § 30-3-10. Custody of a child — Custody factors.
- evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;
- the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:
o physical needs;
o emotional needs;
o educational needs;
o medical needs; and
o any special needs;
- the parent’s capacity and willingness to function as a parent, including:
o parenting skills;
o co-parenting skills, including:
- ability to appropriately communicate with the other parent;
- ability to encourage the sharing of love and affection; and
- 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
o ability to provide personal care rather than surrogate care;
- the past conduct and demonstrated moral character of the parent;
- the emotional stability of the parent;
- the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;
- 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;
- the parent’s reasons for having relinquished custody or parent-time in the past;
- duration and depth of desire for custody or parent-time;
- the parent’s religious compatibility with the child;
- the parent’s financial responsibility;
- the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;
- who has been the primary caretaker of the child;
- previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;
- the relative benefit of keeping siblings together;
- the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;
- 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;
- any other factor the court finds relevant.
30-3-10.2. Joint custody order — Factors for court determination — Public assistance.
- whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;
- 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;
- co-parenting skills;
- whether both parents participated in raising the child before the divorce;
- the geographical proximity of the homes of the parents;
- 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;
- the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
- the past and present ability of the parents to cooperate with each other and make decisions jointly;
30-3-35.2. Equal parent-time schedule.
- A court may order the equal parent-time schedule described in this section if the court determines that:
o the equal parent-time schedule is in the child’s best interest;
o each parent has been actively involved in the child’s life; and
o each parent can effectively facilitate the equal parent-time schedule.
- To determine whether each parent has been actively involved in the child’s life, the court shall consider:
o each parent’s demonstrated responsibility in caring for the child;
o each parent’s involvement in child care;
o each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;
o each parent’s assistance with the child’s homework;
o each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
o each parent’s bond with the child; and
o any other factor the court considers relevant.
- To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:
o the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
o each parent’s ability to assist with the child’s after school care;
o the health of the child and each parent, consistent with Subsection 30-3-10(6);
o the flexibility of each parent’s employment or other schedule;
o each parent’s ability to provide appropriate playtime with the child;
o each parent’s history and ability to implement a flexible schedule for the child;
o physical facilities of each parent’s residence; and
o any other factor the court considers relevant.
30-3-32. Parent-time — Definitions — Considerations for parent-time — Relocation.
- A court may consider the following when ordering a parent-time schedule:
o whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;
o evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;
o the distance between the residency of the child and the noncustodial parent;
o a credible allegation of child abuse has been made;
o the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;
o the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
o the preference of the child if the court determines the child is of sufficient maturity;
o the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
o shared interests between the child and the noncustodial parent;
o the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
o 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;
o a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
o the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;
o the parent-time schedule of siblings;
o the lack of reasonable alternatives to the needs of a nursing child; and
o any other criteria the court determines relevant to the best interests of the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277bias court, custody, Parent Time, women in divorce