What Is the Point of Granting Divorced Parents Joint Custody and Splitting Parenting Time? Isn’t It the Idea That the Children Benefit From Having Two Parents? Isn’t That True Only So Long as Both Parents Are Positive Influences and Not Criminals?
You pose two very good questions, and there are very good answers to each of them.
Question 1) What is the point of granting divorced parents joint custody and splitting parenting time? Isn’t it the idea that the children benefit from having two parents?
Answer: Yes. More specifically, the idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible.
Question 2) Isn’t that true only so long as both parents are positive influences and not criminals?
Answer: Essentially, yes. The idea is that the children benefit from having both of their fit* parents involved in their children’s lives as possible. No one suggests that a child is inherently benefited by a parent exercising custody of that child if the parent is unfit to exercise custody of the child.
*What does it mean to be a fit parent? Every jurisdiction has different, though similar criteria for defining and evaluating parental fitness. Most concisely stated, a parent is not fit if that parent abuses, neglects, and/or poses a clear danger of such to his/her children.
What are the factors the courts consider in Utah when determining what the custody award will be?
30-3-10. Custody of a child — Custody factors.
- 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.
- 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.
(4)
(a) The person who desires joint legal custody shall file a proposed parenting plan in accordance with Sections 30-3-10.8 and 30-3-10.9.
(b) A presumption for joint legal custody may be rebutted by a showing by a preponderance of the evidence that it is not in the best interest of the child.
(5)
(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.
(b)
(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise.
(ii) The desires of a child 14 years old or older shall be given added weight, but is not the single controlling factor.
(c)
(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.
(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.
(6)
(a) Except as provided in Subsection (6)(b), a court may not discriminate against a parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.
(b) The court may not consider the disability of a parent as a factor in awarding custody or modifying an award of custody based on a determination of a substantial change in circumstances, unless the court makes specific findings that:
(i) the disability significantly or substantially inhibits the parent’s ability to provide for the physical and emotional needs of the child at issue; and
(ii) the parent with a disability lacks sufficient human, monetary, or other resources available to supplement the parent’s ability to provide for the physical and emotional needs of the child at issue.
30-3-10.2. Joint custody order — Factors for court determination — Public assistance.
(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and the court determines that joint legal custody or joint physical custody or both is in the best interest of the child.
(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.
(3) The determination of the best interest of the child shall be by a preponderance of the evidence.
(4) The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.
(5) The court may order that when possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.
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.
(2)
(a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.
(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.
(e)
(i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.
(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).
(3)
(a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:
(i) one parent shall exercise parent-time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.
(b) The child exchange shall take place:
(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.
(4)
(a) The parents may create a holiday schedule.
(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:
(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.
(5)
(a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.
(b)
(i) One parent may make a designation at any time and the other parent may make a designation after May 1.
(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period begins.
(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.
30-3-32. Parent-time — Definitions — Considerations for parent-time — Relocation.
(1) As used in Sections 30-3-32 through 30-3-37:
(a) “Child” means the child of divorcing, separating, or adjudicated parents.
(b) “Supervised parent-time” means parent-time that requires the noncustodial parent to be accompanied during parent-time by an individual approved by the court.
(c) “Surrogate care” means care by any individual other than the parent of the child.
(d) “Uninterrupted time” means parent-time exercised by one parent without interruption at any time by the presence of the other parent.
(e) “Virtual parent-time” means parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media, to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent.
(2)
(a) A court shall consider as primary the safety and well-being of the child and the parent who experiences domestic or family violence.
(b) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
(i) it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce;
(ii) each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interests; and
(iii) it is in the best interests of the child to have both parents actively involved in parenting the child.
(3) An order issued by a court pursuant to Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, shall be considered evidence of real harm or substantiated potential harm to the child.
(4) If a parent relocates because of an act of domestic violence or family violence by the other parent, the court shall make specific findings and orders with regards to the application of Section 30-3-37.
30-3-34. Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:
(a) establish a parent-time schedule; or
(b) order a parent-time schedule described in Section 30-3-35, 30-3-35.1, 30-3-35.2, or 30-3-35.5.
(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 considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.
(3) A court may consider the following when ordering a parent-time schedule:
(a) whether 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.
(4) The court shall enter the reasons underlying the court’s order for parent-time that:
(a) incorporates a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or
(b) provides more or less parent-time than a parent-time schedule provided in Section 30-3-35 or 30-3-35.5.
(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.
(6) Once the parent-time schedule has been established, the parties may not alter the schedule except by mutual consent of the parties or a court order.
30-3-34.5. Supervised parent-time.
(1) Considering the fundamental liberty interests of parents and children, it is the policy of this state that divorcing parents have unrestricted and unsupervised access to their children. When necessary to protect a child and no less restrictive means is reasonably available however, a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-114, from the noncustodial parent if left unsupervised with the noncustodial parent.
(2) A court that orders supervised parent-time shall give preference to persons suggested by the parties to supervise, including relatives. If the court finds that the persons suggested by the parties are willing to supervise, and are capable of protecting the children from physical or emotional harm, or child abuse, the court shall authorize the persons to supervise parent-time.
(3) If the court is unable to authorize any persons to supervise parent-time pursuant to Subsection (2), the court may require that the noncustodial parent seek the services of a professional individual or agency to exercise their supervised parent-time.
(4) At the time supervised parent-time is imposed, the court shall consider:
(a) whether the cost of professional or agency services is likely to prevent the noncustodial parent from exercising parent-time; and
(b) whether the requirement for supervised parent-time should expire after a set period of time.
(5) The court shall, in its order for supervised parent-time, provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted. The court shall schedule one or more follow-up hearings to revisit the issue of supervised parent-time.
(6) A noncustodial parent may, at any time, petition the court to modify the order for supervised parent-time if the noncustodial parent can demonstrate that the specific goals and expectations set by the court in Subsection (5) have been accomplished.
_______________
For a more detailed discussion of parental fitness factors in other jurisdictions, feel free to read on:
Parental fitness “is in some way tied into the best interest of the child. The jurisprudence variously has interpreted this statutory fitness as physical, economic, mental, or moral fitness[.]” Joint Custody in Louisiana, 43 LALR 85 (September 1982)
Another definition of parental fitness in the context of termination of parental rights is found in Louisiana Statutes, Louisiana Children’s Code, Title XI. Surrender of Parental Rights, Chapter 1. Preliminary Provisions; Definitions, at Art. 1103(5)(Definitions), but it wouldn’t make a bad standard for evaluating parental fitness in a child custody dispute either:
(5) “Parental fitness” means:
(a) That a parent has not abused the child. For purposes of this Subparagraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.
(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well- recognized religious method of healing with a reasonable, proven record of success.
(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.
See also this from Legal Rights of Children (November 2022 Update, Thomas R. Young), Part II. Children and the Family Relationship, Chapter 2. Child Custody. § 2:5. The best interests of the child rule:
The evolution of the best interests approach has focused on the development of a comprehensive list of factors that a court may or must consider in making its determination. As previously illustrated with regard to what the courts in the State of Missouri look for to determining a child’s best interest, the criteria upon which a court may rely in deciding which parent should be awarded custody may include the child’s preference, the bond the child may have with a parent, his or her health (physical and mental), the child’s sex and age,15 and each parent’s fitness to assume custody.[footnote 16]
[16] Hall v. Hall, 571 So. 2d 1176 (Ala. Civ. App. 1990); Stephen v. Stephen, 1997 OK 53, 937 P.2d 92 (Okla. 1997); Irwin v. Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627 (2d Dep’t 1997); Issac v. Issac, 2004 WL 2915330 (Ky. Ct. App. 2004); Klausman v. Klausman, 2004-Ohio-3410, 2004 WL 1461356 (Ohio Ct. App. 9th Dist. Summit County 2004); Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006); Patterson v. Patterson, 207 S.W.3d 179 (Mo. Ct. App. S.D. 2006); Kreps v. Kreps, 2010 SD 12, 778 N.W.2d 835 (S.D. 2010); and Pietrzak v. Schroeder, 2009 SD 1, 759 N.W.2d 734 (S.D. 2009) (when considering parental fitness during an initial child custody determination, a court may consider: (1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen).
Other courts have suggested other criteria: the quality of the home environment and the nature of parental guidance that can be offered, the character and reputation of the parties involved, the ability to provide for the continued emotional and intellectual needs and development of the children, the potentiality of maintaining natural family relationships, the material opportunities affecting the future life of the child,20 and the opportunity for visitation.
Parental fitness can be subdivided into several categories: moral fitness, love and affection of the parent for the child, and past conduct affecting the child’s needs, both physically and mentally as well as financially. When making a custody award, a New York court has said that in determining what is best for the child, the court should review the child’s emotional and intellectual development, the quality of the home environment, parental guidance that is being or could be provided, the stability of the respective homes involved, and the child’s own desires.
Traditionally, courts have taken a moralistic approach to evaluating the fitness of a parent. A parent found to be an adulterer has historically been deemed to be morally unfit by reviewing courts and denied custody of the child as punishment. Courts, in using this approach, arguably never reached the issue of the child’s best interests. Today, however, courts tend to be more concerned with a child’s psychological well-being. Focusing more on the child’s rights and its best interests, rather than those of the parent, courts now give far less consideration to a parent’s conduct if it does not affect his or her relationship with the child. Several states have laws which expressly forbid consideration of parental conduct which does not directly affect the parent’s relationship with the child.
Courts are moving toward a more objective analysis of parental fitness as it affects a child’s well-being. This change in perspective requires that each parent be evaluated in terms of ability and willingness to care for the child, free of gender-based presumptions. For example, in 1982, the Virginia Supreme Court found that it was in the child’s best interests to be in the father’s custody where both parents were fit but where the home environment offered by the father was more conducive to the child’s well-being. In other cases, the maternal presumption has been replaced by a gender-neutral presumption favoring the parent found to be the primary caretaker. Still, other courts have rejected outright a mother’s claim to her child based only on the tender years doctrine. Today, a judicial finding of parental unfitness and denial of custody often requires compelling evidence of emotional instability, repeated and flagrant immoral acts, or a failure to provide care and guidance to the child through cruelty, abandonment, or neglect.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: best interest of the child, child custody, parental fitness