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What are the child custody factors that judges consider?

What are the child custody factors that judges consider when determining what’s in a child’s best interest in custody disputes according to Utah’s family law statutes?

The main factors are found in Utah Code § 30-3-10 (and the main factors of § 30-3-10 itself are highlighted below in red text, but you should read the entire applicable code section for all factors):

30-3-10.  Custody of a child — Custody factors.

(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.

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(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.

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(7) This section does not establish a preference for either parent solely because of the gender of the parent.

(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

*****

(10) In considering the past conduct and demonstrated moral standards of each party under Subsection (2)(d) or any other factor a court finds relevant, the court may not:

     (a) consider or treat a parent’s lawful possession or use of cannabis in a medicinal dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in accordance with Title 4, Chapter 41a, Cannabis Production Establishments and PharmaciesTitle 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession or use of any prescribed controlled substance; or

     (b) discriminate against a parent because of the parent’s status as a:

         (i) cannabis production establishment agent, as that term is defined in Section 4-41a-102;

         (ii) medical cannabis pharmacy agent, as that term is defined in Section 26B-4-201;

         (iii) medical cannabis courier agent, as that term is defined in Section 26B-4-201; or

         (iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis.

Just how does a court consider the child custody factors? The recent case of Lamb v. Lamb (2024 UT App 16) provides a concise explanation:

¶26 Section 30-3-10 states that in “determining any form of custody and parent-time . . . , the court shall consider the best interest of the child and may consider . . . other factors the court finds relevant,” including factors for each parent articulated in the code. Utah Code § 30-3-10(2) (emphasis added). These factors a court may consider are “not on equal footing.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Instead, “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.” Id. (emphasis added). “And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806. Thus, to “ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).

But note that § 30-3-10 does not constitute the only list of factors the court can consider in making its child custody and parent-time award decisions.

Equal physical custody factors

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.

Parent-time factors

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.

30-3-33.  Advisory guidelines.

In addition to the parent-time schedules provided in Sections 30-3-35 and 30-3-35.5, the following advisory guidelines are suggested to govern all parent-time arrangements between parents.

(1) Parent-time schedules mutually agreed upon by both parents are preferable to a court-imposed solution.

(2) The parent-time schedule shall be used to maximize the continuity and stability of the child’s life.

(3) Special consideration shall be given by each parent to make the child available to attend family functions including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the parent-time schedule.

(4) The responsibility for the pick up, delivery, and return of the child shall be determined by the court when the parent-time order is entered, and may be changed at any time a subsequent modification is made to the parent-time order.

(5) If the noncustodial parent will be providing transportation, the custodial parent shall have the child ready for parent-time at the time the child is to be picked up and shall be present at the custodial home or shall make reasonable alternate arrangements to receive the child at the time the child is returned.

(6) If the custodial parent will be transporting the child, the noncustodial parent shall be at the appointed place at the time the noncustodial parent is to receive the child, and have the child ready to be picked up at the appointed time and place, or have made reasonable alternate arrangements for the custodial parent to pick up the child.

(7) Regular school hours may not be interrupted for a school-age child for the exercise of parent-time by either parent.

(8) The court may make alterations in the parent-time schedule to reasonably accommodate the work schedule of both parents and may increase the parent-time allowed to the noncustodial parent but may not diminish the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.

(9) The court may make alterations in the parent-time schedule to reasonably accommodate the distance between the parties and the expense of exercising parent-time.

(10) Neither parent-time nor child support is to be withheld due to either parent’s failure to comply with a court-ordered parent-time schedule.

(11) The custodial parent shall notify the noncustodial parent within 24 hours of receiving notice of all significant school, social, sports, and community functions in which the child is participating or being honored, and the noncustodial parent shall be entitled to attend and participate fully.

(12) The noncustodial parent shall have access directly to all school reports including preschool and daycare reports and medical records and shall be notified immediately by the custodial parent in the event of a medical emergency.

(13) Each parent shall provide the other with the parent’s current address and telephone number, email address, and other virtual parent-time access information within 24 hours of any change.

(14) Each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration:

     (a) the best interests of the child;

     (b) each parent’s ability to handle any additional expenses for virtual parent-time; and

     (c) any other factors the court considers material.

(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.

(16) Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.

(17) Each parent shall be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday.

(18) If the child is on a different parent-time schedule than a sibling, based on Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for parent-time with all the minor children so that parent-time is uniform between school aged and non-school aged children, is appropriate.

(19) When one or both parents are servicemembers or contemplating joining a uniformed service, the parents should resolve issues of custodial responsibility in the event of deployment as soon as practicable through reaching a voluntary agreement pursuant to Section 78B-20-201 or through court order obtained pursuant to Section 30-3-10. Servicemembers shall ensure their family care plan reflects orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed Parents Custody, Parent-time, and Visitation Act.

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 30-3-3530-3-35.130-3-35.2, 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.

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

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