Tag: equal custody

What Are My Chances of Gaining Full or Primary Custody of My Child as a Father?

First, you need ask a different question before you get to the question of a father’s chances of winning full or primary custody of children in divorce. The question should not be “what are my chances,” but instead, “What custody arrangement is best for our children?”

It is my view that as long as both parents are fit (not perfect, and not equally fit, but each parent meets minimal requirements of parental fitness), both parents love their children and want to be as involved as they can be with their children while the children are still minors, and both parents live within very close proximity to each other so that the children have the same friends and activities in the same neighborhood regardless of which parent they are with at a given time, then the parents should be awarded joint custody. Joint custody does not necessarily mean 50/50 custody, by the way. For example, in Utah, where I practice divorce and family law, joint physical custody* is defined in the Utah Code as “the child stays with each parent overnight for more than 30% of the year”; so that means that if Dad has the children in his custody 111 overnights out of 365, he’s considered a “joint physical custodian”.

With that stated, I’ll address your question: What are my chances of gaining full or primary custody of my child as a father? Generally speaking, in contemporary culture? Not great. Heck, not even good, but still better than it was a generation ago.

I’m a divorce lawyer. I’m 55 years old. When I was still a child (a teenager) in the 1980s, the way joint child custody for fathers was discussed would lead you to conclude that the authors had never even contemplated it before. One article I found treats the subject of a law passed in 1981 “authorizing joint custody of children after separation or divorce”. Really? Joint custody wasn’t even an option until 1981? And this paragraph is from article published in 1984:

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce.

We’ve come a long way since then, but there is still an undeniable bias that takes two forms: 1) bias in favor of mothers (and thus, consequently against fathers) and 2) a specific bias against fathers in the child custody analysis.

Judges, whether they be men or women, generally (not all judges, but most still) believe that mothers are superior caregivers, that children are generally more closely bonded with their mother than with their fathers, and that men who say they want to exercise joint custody do so to a) gain leverage in divorce negotiations over issues that have little or nothing to do with child custody and/or b) reduce the amount of child support they pay. It’s pretty sexists thinking, and you’re rarely going to find a judge who’s dumb enough to express his/her views so starkly, but the bias is there. It doesn’t matter if you’re a male or female lawyer; we all see it.

If you’re clearly an absentee father, then your hope of being awarded joint custody rests largely on whether you are lucky enough to live in a jurisdiction that awards joint custody more or less by default. I’ve heard that such jurisdictions exist, but I don’t live in one now.

But if you are a good, loving, fit father, what can you do to improve their chances of the court making a joint physical and legal custody award? In no particular order: 1) call out the bias (do it diplomatically, if possible). 2) gather and present ludicrously overwhelming evidence of your parental fitness. The bias against fathers results in mothers essentially being presumed fit parents and father being presumed unfit. It’s disgustingly unfair, but crying about it isn’t enough to overcome it. Fathers must work much, much harder and provide much, much more objectively verifiable evidence of parental fitness than do mothers. Prove beyond any reasonable doubt that you clearly meet all of the criteria in your jurisdiction for qualifying for a joint custody award. 3) Be prepared for a long, expensive, unfair fight. Don’t give up. You’ll want to, perhaps even several times over the course of the court case. 4) Do not fall for the “well, we’ll start with minimum visitation/parent-time and see about working our way up to joint” settlement offer scam—that’s usually structured (whether intentionally or not) to keep you at minimum time.

Utah Family Law, LC | | 801-466-9277

*There are two kinds of child custody: physical and legal. Physical custody is the right to have the child live with the person awarded custody by the court (Black’s Law Dictionary 11th ed. 2019). Legal custody is the authority to make significant decisions on a child’s behalf, including decisions about education, religious training, and healthcare. (Id.) Make sure you seek both joint physical AND joint legal custody. And unless you don’t want equal (i.e., 50/50, no parent has more than the other) custody, make sure you specifically request an award of equal legal and physical custody. It’s not a given.

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Is There a Primary Parent in Joint Custody in Utah Which Is Also Known as “Equal” or “50/50” Custody?

Utah, like many states, has struggled with the very concept of equal (“50/50”) custody of children for years. While progress has been made (especially in the past few years), we still struggle with it. Inexplicably, in my opinion.

For example, in Utah, we have § 30-3-35.2, entitled “Equal parent-time schedule.” It provides, in pertinent part: “(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.” (emphasis mine)

Why? A 50/50 schedule would naturally result in the children spending equal time with the parents because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.

So, you can see how this Code section applies to your question of whether there is a primary parent in a joint equal (50/50) custody award situation.

*But here’s a strange note: To be awarded equal physical custody does not require that it be awarded according to the provisions of Utah Code § 30-3-35.2. In the cases in which I am involved where the parents agree to equal custody, I specify in the settlement agreement and in the custody orders that each parent has the children in his/her care and custody an average of 182.5 overnights annually, and include an statement like the one I provided above explaining how that works (i.e., “because a year has an odd number of overnights in it. Thus, in one year the children would spend 183 overnights with Mom and 182 with Dad, then the next year the children would spend 182 overnights with Mom and 183 with Dad. That results in an equal distribution of time with the children between the parents.”)

Accordingly, in Utah the answer to the question of, “Is there a primary parent in an equal physical custody award case?,” is that it’s possible for one parent to have the children in his/her custody one more overnight more than the other parent, but such a situation is not mandatory. Parents who truly want a perfectly equal division of child custody can have it, if they ensure that the language of the custody order so provides.

Utah Family Law, LC | | 801-466-9277

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What is the proper way to request a change of the child custody order?

What is the proper language to request a change of the child custody order in family law court?

What you want to accomplish is not the kind of thing that you have good odds of accomplishing successfully on your own, as a non-lawyer. Indeed, the odds are against you doing this correctly. 

Seeking a modification of a child custody order is a matter of much more than merely finding “the right words” (although being clear and accurate in one’s choice of words in legal documents is crucial). The “proper language” to use to seek a modification of an existing child custody order is not a matter of a few sentences or paragraphs, and there is no such thing as one and only one particular way to phrase a request for a modification of the child custody award and to phrase the arguments for why that should occur. 

My guess is that you either don’t have enough money to retain the services of an attorney to help you or don’t want to spend the money on an attorney’s help, but this is a situation in which not getting a good attorney’s assistance could be the difference between success and failure. 

Many people who are not experienced lawyers have somewhat strange, often incredibly oversimplified, and erroneous beliefs about the way the law and the courts function.  

Many people are afraid to consult with lawyers for fear that the lawyers will try to charge them extortionate amounts of money. I sympathize. There are many lawyers who do just that (I am a lawyer, so I know). But if you will shop around extensively, you can find a good lawyer who delivers value for what he or she charges you. When you find such a lawyer, it some of the best money you’ll ever spend. People who represent themselves in court and who don’t know what they’re doing don’t get do overs for the mistakes they make. 

Many people believe that if what they want makes all the sense in the world to them, then it will make all the sense in the world to the courts. In my experience, just the opposite is true. What often make sense to people unfamiliar with the legal system is not the way the legal system functions. This is not to say that everything in the legal system is nonsensical, but a lot of what people believe the law is or should be is not the way the law is or works. 

Bottom line, consult with an attorney. Find out what you need to do, find out how much it will cost, then find a way to afford it. It’s far less expensive in the long run than the risks you run in trying to do it yourself. 

Utah Family Law, LC | | 801-466-9277

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How would my fiancé go about getting any sort of custody for his child?

That is an extremely broad question. The best way to start: find a good domestic relations lawyer (a good one, not just any) and schedule a consultation with him/her so that your fiancé can explain the situation to the lawyer, learn from the lawyer what your fiancé’s options may be, and ask what the lawyer might advise your fiancé to do. 

Free consultations are usually a “get what you pay for situation,” so forewarned is forearmed. And most “free consultations” are really sales pitches in disguise. Better to schedule a consultation that you have paid for. You will get more of the attorney’s attention and more likely will get an objective assessment of the case. 

Utah Family Law, LC | | 801-466-9277  

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How hard did you have to fight to get custody of your child after divorce as a father? What was the biggest problem you faced?

Allow me to start this answer by clearing the air a bit:

First, there are many fathers who are clearly unfit fathers but who nonetheless believe the only or the “real” reason they are denied sole or even joint custody is because of unchecked corruption and/or sexual discrimination in the legal system. Such fathers are deluded but get a lot of attention, compensating for their lack of credibility by being extraordinarily vocal.

That stated, no intellectually honest legal professional can deny that there is a bias against fathers when it comes to the child custody and parent time award. The evidence is overwhelming.

That stated, the discrimination against fathers in child custody award cases is slowly but surely being remedied. That, however, is cold comfort to fathers who are suffering current bias and discrimination.

I exaggerate only slightly when I state that in child custody disputes mothers are more or less presumes to be not only fit parents, but superior parents to fathers. The child custody fight is the mother’s fight to lose. Fathers, on the other hand, are often presumed to be uncaring, unprincipled, and thus unfit to exercise custody of their children, pegged as seeking sole or joint custody only for the purpose of avoiding or reducing their child support obligations.

Like the proverbial minority (whether that be a racial or sexual minority) who has to be 10 times better than the majority candidates just to get a seat at the table (whether that be in business or athletics or politics or any other worldly endeavor), fathers confront a lopsided double standard in child custody disputes.

SOP (standard operating procedure) in a child custody dispute consists of a mother asserting herself to be that only fit to exercise custody of the children, but the only parent fit to exercise custody, followed by the court accepting that assertion and then burdening the father with rebutting it if he is to have any chance at obtaining sole or even joint custody of his children. It simply not enough for the father to demonstrate that he is and always has been a law-abiding and otherwise responsible person (and parent) of good character.

Perversely, fathers must demonstrate that they are super parents (that anything Mom can do I can do just as well or better) before they will be treated as worthy of the custody of their children. But even if a father meets this impossible standard, he’s written off as a liar, and egotist, or both.

Never mind that the social science overwhelmingly proves that children do best when reared by a mother and a father, and that exposure to and experience with the differences between one’s mother and a father are one of the material reasons why a child develops to his or her fullest potential.

No, in the family law realm fathers are second-class parents. Like a limited use spare tire. Better

than nothing, but clearly not on par with mothers when it comes to parental value and importance. This is why so many court still inexplicably believe (or say they believe) that children need to be reared primarily by their mothers and that fathers can fulfill their parental obligation sufficiently by visiting with their children a few hours a week, every other weekend, and every other major holiday.

Consequently, fathers are marginalized in their children’s lives. Children—having no understanding of why they see so little of Dad now—feel rejected. Both fathers and children drift apart both physically and emotionally as a consequence. It is as pointless as it is heartbreaking.

So how hard do fathers have to fight for solar physical custody of their children? For far too many fathers, it’s a trick question. In many jurisdictions, it doesn’t matter how hard a father fights and how much proof he presents. He can’t win. More accurately, the culture of the legal system predestines him to lose.

If you are a father and you don’t want to be marginalized or erased by your child custody court proceedings, you may very well have to spend every last penny you have hiring the best lawyer(s) (yes, you may need more than one) and experts in an effort to build and present a case so strong that it is impossible to refute. I am not exaggerating. Even then, that may not be enough.

Utah Family Law, LC | | 801-466-9277

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S.B. 122 just passed! So what? Joint equal physical custody.

S.B. 122 (4th Substitute) passed by the Utah State Legislature March 5, 2021!

Who should care and why?

  • The elephant in the room is this: if there is no gender bias/sexual discrimination that is preventing fit, able, worthy fathers from being awarded joint equal physical custody, then why A) did so many people (not only a huge number of men, but women who sympathize with these men and with the plight of men in child custody disputes generally) and B) the overwhelming majority of Utah legislators pass a law to address and, it is hoped, eliminate that bias.
  • If you are a parent (particularly a father) who is worried about having child custody or parent time reduced to minimal levels in your divorce or other kind of child custody case, then for the sake of your children and your relationship with them, you need to know what S. B. 122 means for you and your children.

What will S.B. 122’s passage into law do? It will make it easier to make a case for an award of joint equal physical custody of children. Again, this is especially important to fathers who have historically faced a strong culture of bias and prejudice in the legal system.

Finally! But all is not total sunshine and roses—read on to learn why.

Bottom line: This new joint equal custody option is better than what we had in the past and should make it easier to win a joint equal custody award, but we’re still going to run into parents and commissioners and judges who simply cannot accept the idea of joint equal physical custody. So get your hands on as much proof (proof, as opposed to mere evidence; meaning: objective, independently verifiable facts) as you possibly can to satisfy § 30-3-35.2 factors if you hope to get joint equal physical custody awarded.

S.B. 122:

  • amends Utah Code § 30-3-34 to provide for a new “parent-time” schedule option that, if implemented, would result in the children spending equal periods of time annually with each parent.
  • creates a new code section, § 30-3-35.2, which, if the court orders its application in a child custody case, would result in the parents sharing overnights with the children equally on an annual basis.
  • Amends § 78B-12-208 to provide for how child support is calculated under a § 30-3-35.2 equal custody schedule.

Portions of the changes S.B. 122 bring to the child custody scene are highlighted (in some cases “lowlighted”) in red text because they are important to know about.


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 beings.

(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.


30-3-34. 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 [consistent with the best interests of the child.]; 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
33     schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:].
(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;


(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.


 78B-12-208.Joint physical custody — Obligation calculations.

In cases of joint physical custody, the base child support award shall be determined as

(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent’s proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent’s percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) (3) [IfSubject to Subsection 30-3-35.2(2)(e)(ii), if the obligor’s time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined by Subsection (2) to arrive at the obligor’s payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined in Subsection (3)(a) to arrive at the obligor’s payment.

Utah Family Law, LC | | 801-466-9277

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What are the odds of a ballot measure for 50/50 custody?

What are the chances of a ballot measure in CA for a rebuttable presumption that child custody should be 50/50 if both parents wish at least 50%?


This isn’t important to enough people to get it on the ballot, and even if it were, the culture isn’t ready to make a presumption of 50/50 custody law.

The day when the presumption will be 50/50 is coming, but not right now.

Utah Family Law, LC | | 801-466-9277

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