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Tag: joint custody

Why Condemn Children to Sole Custody Awards When They Have Two Fit Parents?

One of the arguments that some fathers make when they encounter the double standard applied to mothers and fathers in child custody disputes (resulting in a denial of equal legal and physical custody to perfectly fit fathers in situations in which there is no way it could be shown that sole custody subserves the best interest of the child better than joint equal custody), they sometimes argue in utter (and utterly understandable) frustration, “Single mothers prove to be the worst parents time and time again!”

That’s an overstatement, a misleading claim. There are plenty of bad single mothers, sure, but single mothers don’t have a corner on the bad parent market.

Single parents (man or woman) have a hard time being the best parents (and being their best selves as a result) because parenthood was never meant to be a solo act. Single parents who try to marginalize and cut the other parent out of childrearing are doing not only the children a disservice, but themselves a disservice as well.

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

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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 | divorceutah.com | 801-466-9277

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Obstacles Fathers Face in Trying to Get Joint Custody of Their Children

I have been asked by a reader to answer two questions.

The first: whether I believe courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time (visitation) orders. The answer is “yes”. Not just “yes,” but “unquestionably, yes.”

The second: What do fathers need to do to meet and overcome that double standard? This is not a polar or closed question, so it requires a prescriptive response.

Before I answer the second question in detail, we need to understand—really and fully understand—why courts generally apply a double standard in the treatment of mothers and fathers when courts make their child custody and parent-time orders. Several volumes could easily be dedicated to the reasons why, so understand what I provide here is not merely concise but rather terse and not exhaustive (though no less true). In no particular order, here are the reasons I’ve encountered:

  • Few will admit it, but most people—both men and women—harbor the belief that women are better parents than men generally.[1]Many judges (both men and women) literally find it impossible to conceive that a father can be as effective a parent as a mother. Consequently, many courts substitute scrutiny and analysis of each particular parent in each particular case for playing the odds by awarding sole primary custody of the children to the mothers.
  • For jurisdictions that base child custody and parent time decisions upon which parent is the “primary caregiver,” courts inexcusably apply a needlessly biased definition of “primary caregiver.” For example, in Utah, “primary caregiver” has been defined as:

We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent.

(Pusey v. Pusey, 728 P.2d 117 (August 18, 1986 Supreme Court of Utah))

The Pusey standard is over 37 years old as of the date this post is written, but is still followed in Utah. The standard is outmoded and do for a change. I believe that change is coming soon and that when that day comes, sexual discrimination against father in the child custody and parent time awards will suffer a fatal or near-fatal blow, but that day is not here yet. Even so, the seeds of Pusey’s destruction are found in the decision itself:

“[T]he provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.”

The primary caregiver standard is (as many of you have already surmised), in many respects, just another disguise for bias in favor of mothers and against fathers.

I would like to say that I do not understand why courts in Utah continue to overlook the obvious fact that most of these so-called primary caregiver parents’ status depends upon the other parent being the sole or primary breadwinner. Otherwise stated, the reason mom can stay home with the kids is because dad is the one working to put that roof over their heads and providing all of the other necessities of life without the mother having to work outside the home herself. And so the courts have these kinds of fathers on the heads, ostensibly thank them for their sacrifices and for being upstanding, responsible men, then turn around and hand over sole or primary custody of the children to the mother nonetheless.

o   The problem with this thinking is that divorce fundamentally changes family dynamics. The primary caregiver analysis often fails to acknowledge that the physical primary caregiver status will rarely remain static post-divorce.

She (or he, in rare instances) who was the primary caregiver when the family all resided under the same roof will rarely remain able to be a stay-at-home parent post-divorce. That stay-at-home parent may find herself having to work outside the home to provide financially both for herself and for the children.

Likewise, fathers who used to come home to their children every day but who now realize they will be lucky if they get to see their kids every other day, will often make sacrifices so that they can spend as much time caring for their kids as possible when they are not at work. Courts, however, largely act as though this fact of life isn’t real. Or they may ostensibly acknowledge the fact in their custody and parent time decisions, custody and parent time awards themselves– mom still ends up with sole or primary custody, and dad ends up with every other weekend, alternating holidays, and a few weeks in the summer.

In Utah, the law is:

“Determining which factors the court must address in a given case, and to what degree, presents a tricky task,” and that “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” See Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806

But “where significant evidence concerning a particular factor is presented to the district court,” especially where that factor is a critically important one, “findings that omit all discussion of that evidence” and of that factor “must be deemed inadequate.” Id.

(Twitchell v. Twitchell, 2022 UT App 49, ¶ 21, 509 P.3d 806)

But it doesn’t take a genius to find that courts can, if they so desire, overlook pretty much whatever evidence they want (to get to the ruling they want) by simply deeming/dismissing/discounting such evidence as “insignificant”.

So what can (or even must) fathers do to ensure that they (and their children’s relationships with them) are simply treated fairly and impartially in the child custody and parent-time awards? An exhaustive list of pointers could run into the hundreds, but here are the most important, in my estimation (again, in no particular order):

  1. Approach your case like a black man would back in the 1960s who was a defendant in a criminal case: to win, he had to prove his innocence, and he had do it with 10 times more evidence than a white defendant needed. Fathers need to prove their parental fitness. Rarely will a court presume fitness of a father (they presume a mother’s fitness all the time). Generally, fathers must have far more and far better evidence of their fitness compared to what the courts require of mothers. Otherwise stated, you need so much evidence, and so much high-quality evidence, that even the most biased/cynical judge cannot deny you without looking inept or corrupt.
  2. Prove that you satisfy every custody factor the court must consider. In Utah, those factors are found here:

Utah Code § 30-3-10.  Custody of a child—Custody factors.

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

30-3-32.  Parent-time—Definitions—Considerations for parent-time — Relocation.

Utah Code § 30-3-34.  Parent-time — Best interests — Rebuttable presumption.

Utah Code § 30-3-35.1.  Optional schedule for parent-time for a child five to 18 years old.

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

  1. Document everything you possibly can to prove you are a fit parent who can and should exercise at least equal custody of your children (do not seek sole custody or primary custody out of spite—that is wrong).
  2. Do everything you reasonably, possibly can to show you are a fit parent in every way.
  3. If you and your wife are separated, make sure you live as close to your wife as you can, so that the children are in the same neighborhood near their same friends and familiar favorite places, same school district where the children attend school, and can attend the same church they have been historically attending, so that the court doesn’t say, “Dad, you live too far away to make awarding you equal custody good for the children.” Do you see why?
  4. If you live too far away from your kids, they will end up presenting spending any time with you, resent the travel back and forth between their parents’ homes, they won’t have any friends in your neighborhood, they will be too far away from school and extracurricular and church activities, and you risk them telling you that spending time with you is more trouble than it’s worth.
  5. Get your hands on all the latest rigorous research showing that children, whether boys or girls, fare better in an equal custody arrangement. You may even need to retain the services of an expert witness to testify to these things. If you simply dump scholarly articles on the court, they will likely not be admissible without an expert witness to verify that they are legitimate and valid.
  6.       Live a life beyond reproach, and document it in painstaking detail.
  7. You want to do everything to prove this beyond any reasonable doubt: “Your Honor, if what I have set up by way of where I live and what my work schedule is and how much time I can spend providing personal care and attention for the children doesn’t qualify me in every meaningful way to exercise equal physical custody of our children, then there is no other realistic situation that can.”
  8. Ensure that the court makes findings that you meet every factor (ensure that the court makes findings on every factor and points to the evidence supporting each and every finding).
  9. Don’t merely prove you are a good parent. To the extent you can, also DISPROVE all the claims that you are not a good parent.
  10. Be careful about admitting your wife is a good and fit parent if she’s claiming you are a bad and unfit parent.
  11. No, I’m not advising you to lie about your wife’s parental fitness, I’m warning you that I’ve seen courts make findings like this far too often: “Dad admits that Mom is a good parent, but Mom claims Dad is a bad parent, and so Mom wins the parental fitness argument.” It’s disgusting, but it happens.
  12. Don’t believe that “falling on your sword for your kids” will benefit you, or the kids for that matter. When you do that, you run the unnecessary risk of the court pulling a “no good deed goes unpunished” move like, “Dad said he’s willing to agree to less than equal custody to settle the case and put an end to the fighting; so be it.” That may have worked with Solomon, but it rarely works in court.
  13. Show that depriving a child of any care and love and companionship and tutelage that a parent is able and willing to give that child is inherently contrary to the best interest of the child. Show that “the best parent” is BOTH parents. Show that children have a right to loved and reared by both of their parents as much as possible.
  14. Blow the “primary caregiver” argument as meaning “woman” or even “the stay-at-home parent” to smithereens. It’s a pernicious lie. Read my other blog post for more on this and other bogus arguments against fathers and joint legal and physical custody of children: All Men Are Created Equal: A Proof for the Presumption of Joint Physical Custody – Divorce Utah

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


[1] I am nothing, if not frank. It is probably true that if you took a random sampling of parents and analyzed which of the two, among the mother and the father, is the more competent and attentive parent, a higher percentage of those parents would be mothers instead of fathers. But that doesn’t mean that every mother is presumptively a better parent than every father in a child custody dispute. It’s when courts indulge in such a presumption that they indulge in sexual discrimination, indulge in analytical laziness, and thus can (and often do) commit error.

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As a Joint Legal and Physical Custodial Parent, Can I Legally Prevent the Other Parent From Going on a Vacation (Either Out of State or Out of the Country) With Our Child or Children?

Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.

Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.

Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.

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

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If One Parent Gets Primary Custody, Does This Mean That He/She Can Make All Decisions Regarding the Kids Without Any Input From the Other Parent?

There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.

Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.

Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.

You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.

Another term that is often used for sole custody is primary custody. That is something of a misnomer.

Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.

Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.

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

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What’s the Chance That Soon-to Be Ex-husband Will Get “Final Decision Making” in Joint Custody?

That depends on many, many factors. Some legitimate, some possibly not.

Those of you who have read my content here may have noticed that I am of the opinion (arising out of more than 25 years’ experience as a divorce and family law attorney and the study of the subject in that same period of time) that while the bias against men in divorce and child custody cases is less than it’s ever been in recent history and continues to weaken, there is still a clear and undeniable bias against awarding fathers equal physical custody, to say nothing of awarding them sole physical custody.

Why, you may ask, am I commenting on the subject of physical custody of children when your question asks what the odds a father has of winning sole legal custody (or at least what is known as “final decision-making authority,” which is often a component of what is nominally “joint legal custody,” but is in reality sole legal custody)? I’ll tell you. Before we go any further, if you haven’t figured out the distinction yet, there are two kinds of child custody: physical custody (essentially how many overnights do the children spend with each parent) and legal custody (concisely stated, the power to make choices regarding the children’s health care, education, religious and moral upbringing, and overall welfare).

I lead with how fathers are treated by courts when it comes to physical custody awards to highlight the contrast between the bias against men on the subject of physical custody and the generally far better treatment fathers receive when it comes to the courts making legal custody awards. Why is that?

It’s my opinion that courts are far more likely to award fathers joint legal custody for two main reasons: numeral 1) it’s easier for courts to claim that mothers are or likely will be better physical caretakers of children than men generally and in particular cases than it is to claim that the judgment of women is so superior to that of men as to justify awarding sole decision-making power to the mothers; and 2) many courts feel as though awarding joint legal custody makes a nice booby prize for the father who fought for equal physical custody of his children but lost that battle.

OK, now that we have these preliminaries covered, we will get to your specific question: what are the chances have a divorcing father being awarded final decision-making authority (i.e., what is essentially sole legal custody)?

Although there may still be some bias in some courts in some parts of the country against men when it comes to awarding legal custody, it has been my experience in my jurisdiction where I practice divorce and family law (Utah) that a father’s odds of being awarded joint legal custody are better than even. In other words, as long as the father has not been shown to exercise poor judgment when it comes to his children, he will likely be awarded joint legal custody with the mother.

So for a father to be awarded sole legal custody of children or at least “final decision making authority,” a father would need to prove that the mother cannot be entrusted with joint legal custody, and he would do this by proving that she is lacking in good judgment when it comes to the children and/or exercises her judgment in a way that leads to harming or neglecting the children’s physical, education, moral, emotional, and psychological needs.

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

 

Eric Johnson’s answer to What’s the chance that soon-to be ex husband will get “final decision making” in joint custody? – Quora

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How Do I Handle a Narcissist Ex-husband in the Visitation of Children if I Have the Primary Custody? He Is Very Manipulative to Our Kids.

I generally wouldn’t recommend trying to get the assistance of the court to remedy this problem. The legal system is not designed to address this problem well, if at all. And even when it can do something worthwhile, the legal system does not generally address this problem well, if at all.

Let’s assume that if you were just given the opportunity to prove that your ex-spouse (and I’m going to approach this question as applying to a manipulative father OR mother) is manipulating your children, you could prove it in spades. With that in mind:

  1. If you ask the judge to interview the kids, odds are that the court will refuse to do so, coming up with all kinds of lame excuses as to why the judge “can’t” or “shouldn’t”. Most of these excuses stem from a belief that a judge interviewing the child will “traumatize” the children, yet these same judges seem to see nothing traumatizing about a guardian ad litem, custody evaluator, social worker, counselor, or therapist interviewing the children.
  2. But even if the judge were to agree to interview the children, by the time the court gets around to conducting the interviews, weeks—even months—may have passed from the day you made the request of the judge to interview the children. In that time in between, the manipulative parent could coach, bribe, and/or coerce the children into saying to the judge anything but the truth. And if the manipulative parent is the one requesting that the judge interview the children, the coaching, bribing, and/or coercion of the children could have been going on for weeks, months, even years before. These are often two of the excuses judges will cite as their basis for refusing to interview children. There is some merit to these excuses, but the solution is not refusing to interview the children, the solution lies in mitigating child manipulation.
  3. But even if you could somehow overcome the first two previously described obstacles and the judge eventually interviews the children, you may find the judge’s reception and analysis of the children’s testimony to be rather obtuse. Not always, but more often than you’d expect. Responses like, “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, but now that I’m aware of it, I trust that Mom/Dad will stop doing it, so I’m not going to make any changes” or “The children tell me that Mom/Dad is regularly disparaging and telling the children lies about the other parent when the children are with Mom/Dad, so I’m going to order Mom/Dad to stop doing it and take a parenting class. That ought to fix it.” I’m not sure judges who do this kind of thing believe it themselves but just do it to create the impression the matter has been addressed and “dealt with”.

If you are a parent with an ex-spouse who manipulates the children in an effort to alienate them from you, I have yet to find a quick, simple, easy, reliable way to combat and overcome parental alienation. If I did find it, I’d be a multimillionaire. There are many people out there who will tell you how to deal with and defeat alienation. A lot of this advice is appealing psychobabble. A lot of this advice is pandering to your fears, heartbreak, and anger. There must be some good advice out there as well. There are some common sense actions to be taken. There is value in meeting with a truly competent child psychologist to better understand the dynamics of parental alienation. But other than that, I’d be lying if I told you I could tell the difference between the wheat and the chaff.

What I can tell is that trying to beat parental alienation through the courts is, for the most part, a major waste of time, money, emotional energy, and effort. Sometimes the alienator’s behavior is so over the top that it can easily be identified and there are some remedies that the court can and should/must take in response. Otherwise, the best things you can do to mitigate and overcome parental alienation are those things within your legal, lawful, moral, and ethical control.

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

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If a father is working full time and is expecting to get 50/50 custody, how does he arrange for the kids when he is at work from 9-5 p.m.?

If a father in this position can’t figure this out on his own, he’s probably not in a position to be entrusted with exercising 50/50 custody. If a father wants 50/50 custody but can’t think of or describe to the court a way to make such a schedule work, who will have confidence in his ability to exercise it? That stated, we must acknowledge that for many fathers, a 50/50 custody schedule may be a new experience. Not impossible to do, but divorced and separated fathers do need reasonable time and accommodations to adjust.

50/50 custody does not mean that the parents must spend precisely the same amount of time with the children each day, week, month, and year. Typically (because the courts and legislatures realize that some parents may be the children’s primary or only breadwinner), “equal custody” or 50/50 custody means that the children spend an equal number of overnights annually with each parent. So even if the children spend more time during the day with Mom because she is a stay at home parent, as long as they spend an overnight with Dad for every overnight they spend with Mom each year (even if that means after Dad gets home from work at 5:30 or 6:00 p.m.), that’s considered equal custody.

Many fathers have to adjust to balancing their primary breadwinner role with more child caregiving and supervision. It’s not that such fathers cannot do this, they just need to be given the chance to adjust to the situation now that both parents don’t reside in the same household with the children. After all, the mother likely have to make adjustments in her schedule and life as well. She will probably need to work more outside the than she may have before the separation or divorce. The courts often (not always, but often) assume Mom will adapt to divorce without skipping a beat on the child care and custody front, while Dad often faces an “unfit until proven fit” presumption he has to work mightily to overcome six ways from Sunday.

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

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What can you do if your ex-husband does not want to pay school fees?

What can you do if your husband does not want to pay school fees for his children when you are divorced? 

First, it is not necessarily a given that a divorced parent must pay for a child’s school fees. I don’t know the law for all jurisdictions, of course, but in the jurisdiction where I practice divorce and family law (Utah), there is no law that expressly requires the parents to share the cost of the child’s school fees. 

Second, in the jurisdiction where I practice divorce and family law (Utah), unless the parents are awarded joint physical custody* of the child(ren), the child support obligor parent (meaning the parent who is obligated to pay child support to the other parent) is not required to pay for anything over and above the monthly base child support obligation amount. 

Even when parents are awarded joint physical custody of children, that does not necessarily guarantee that the parents must share the children’s school fees. First, they are fees that a student must pay as a condition of being enrolled in school, but there are many other optional fees that a student may incur but is not required to incur. A joint physical custodial parent in Utah who has a monthly base child support payment obligation is required to do as follows, when it comes to child support obligations other than/in addition to the base monthly Child support amount: 

(3) “Joint physical custody”: 

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support; 

(See Utah Code section 30-3-10.1(3)(a)) 

Could the phrase “both parents contribute to the expenses of the child in addition to paying child support” be any more ambiguous? It’s hard to imagine how it could be. And yet that is the law in the state of Utah for joint physical custodial parents. So while it is by no means black letter law that joint physical custodial parents in Utah must share the costs of their children’s school fees, it is likely a safe bet that a court would, if the issue arose, order a child support obligor parent to pay, in addition to monthly base child support, a portion (likely half) of a school’s fees that must be paid so that a child can be enrolled in school. 

———— 

*In Utah, joint physical custody does not mean joint equal custody (50/50), it means, “the child stays with each parent overnight for more than 30% of the year,” which means that the child spends no less than 111 overnights with a parent. 

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

https://www.quora.com/What-can-you-do-if-your-husband-does-not-want-to-pay-school-fees-for-his-children-when-you-are-divorced/answer/Eric-Johnson-311  

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If each parent is fully capable, will the court still give full custody to mom?

If both parents are wonderful, will the court still lean towards full custody to the mother?

[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.] 

Not exactly. But close. 

While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents. 

No question about it. The exceptions prove the rule. 

“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards). 

It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do. 

Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination. 

What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations: 

  • Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken. 
  • Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she hadbeen (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising. 
  • Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving). 
  • Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as: 
    • Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children. 
    • The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone. 
  • Courts will still indulge in blatantly discriminating against fathers: 
    • by citing to the “fact” that women/mothers are “born nurturers”; 
    • by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers; 
    • by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers. 

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

https://www.quora.com/If-both-parents-are-wonderful-will-the-court-still-lean-towards-full-custody-to-the-mother/answer/Eric-Johnson-311  

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If both parents are wonderful, will the court still favor the mother?

If both parents are wonderful, will the court still lean towards full custody to the mother?

[Note: I am a divorce lawyer of 25 years. I am not bitter about “what happened to me in my divorce” as I am not divorced. I have no axe to grind with women or mothers (I love my mother, sisters, wife, and daughters dearly and without reservation). With these facts in mind, I answer your question as follows below.]

Not exactly. But close.

While the courts are finally starting to confront and slowly abolish discrimination against fathers when it comes to making the child custody and parent-time awards, the odds are still ludicrously in the mother’s favor when both parents are fit and loving parents.

No question about it. The exceptions prove the rule.

“All things being equal,” the mother is favored (yes, I know that’s illogical, but the courts find ways to justify or to appear to justify illogical thinking, especially in making child custody and parent-time awards).

It’s grossly unfair to children and to fit, loving fathers alike, but it’s what courts frequently (more often than not) do.

Now clearly there are times when, even though Dad’s a wonderful parent, circumstances (such as the parents living too far apart or having an unorthodox/inflexible work schedule) may render impractical or impracticable the exercise of joint equal physical custody and/or result in joint equal custody arrangements doing the children more harm than good. But far, far too often fit, loving fathers are denied joint equal custody by virtue of plain old sexual discrimination.

What does “favoring the mother” (prejudicing the father) look like nowadays? Here are few of the most common situations:

Rather than awarding joint equal physical custody to both parents, awarding “just a little more time” to Mom than to Dad. Case in point: I worked a case where both Mom and Dad had full-time jobs, but the court awarded Mom more time with the children than with Dad anyway (8 out of every 14 days on a 14-day repeating schedule—the trial court even stated that denying the kids and dad that one day every two weeks would enable dad to have more time to get his work done). This was the case where I reached my breaking point (about three years ago). To his credit, my client agreed to appeal (and pay tens of thousands of dollars for the privilege), and he won, with the appellate court ordering the trial court to award equal child custody and parent time. If you believe that happens in every case like his, you would be mistaken.

Finding that, even in situations where the children are preteens or older, the mother was (past tense) the children’s primary caregiver when they were infants and toddlers, and therefore she always has that “advantage” over the father in the here and now. I have this case where mom had been working full-time for the past four years. The youngest of the couple’s children could take care of himself and did not need a full-time caregiver. Worse, mom worked outside the home full-time, while dad’s full-time job permitted him to work from home. At the temporary orders phase of the case, the court awarded mom primary physical custody of the kids because (and the court made no secret of the basis for its decision) she had been (past tense) the per children’s primary caregiver. Dad Wasn’t even seeking sole or primary custody; he was seeking joint equal physical custody, but he lost. Such an outcome is ridiculous and tragic, but not surprising.

Rejecting Dad’s claims that the mother is so lazy and that Dad not only works full-time each day outside the home, but then spends the rest of his time at home taking care the housekeeping and taking care of the kids as well. Why? Because (in my experience) in the minds of most judges it is unthinkable for a stay-at-home mother to be a lazy and inattentive parent (while at the same time it is easy for judges to believe—just believe—that a father doesn’t pull his weight when it comes to fulfilling child caregiving).

Penalizing the father for being the only full-time employed (in many cases the only employed) parent and awarding sole or primary physical custody of the children to the mother because she doesn’t work outside the home. Never mind (apparently) the fact that if the parties share joint equal custody, that would enable both parents to provide as much personal care to the children as possible and also allow them to work full-time jobs for their children’s financial support. Nope. Now clever courts will “acknowledge” and “praise” Dad for being a responsible and devoted breadwinner, but won’t award joint equal custody, justifying the unequal award of child custody with assertions such as:

Spending equal time in both parents’ Respective residences creates an “unstable” residential circumstance for the children.

The fact that unemployed Mom spends more of the waking hours with the children than does Dad (until the children start school, in which case the amount of time mom spends with the kids during waking hours is negligible compared to the time the children are with Dad while he’s at work) means that dad should spend even less of the children’s waking hours with them when he gets home from work. Otherwise stated, because Dad can’t be with the kids during the eight or nine hours that he is at work each day, that means that he should not spend the hours that he does have available to be with the children when the children could be spending that time or “consistently” in the custody and care of their mother. If you don’t understand this reasoning the first time you read through it, you’re not alone.

Courts will still indulge in blatantly discriminating against fathers:

  • by citing to the “fact” that women/mothers are “born nurturers”;
  • by citing to the “fact” that children are more closely bonded with, and thus need more time with, their mothers than with their fathers;
  • by claiming “it’s not the quantity of time but the quality of time” that children spend with their fathers that matters most, failing to concede that the quality of the time is a function of the quantity of time when it comes to parent-child interactions. How did the term “Disneyland Dad” evolve? Not by assuming the responsibilities and “heavy lifting” parental duties of day to day living. No, but by spoiling the child when they have such disproportionately little time on alternating weekends and one weeknight. It creates a warped sense of the father-child relationship and of reality for the kids in general, leading to the kids becoming self-absorbed, worldly, and feeling entitled around their fathers.

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

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Why isn’t 50/50 custody the default resolution in child custody cases?

I have studied this question throughout my career, and I’ve been a divorce and family lawyer for 25 years. If there is one family law question to which I know the answer, it is this one. 

Eventually, a rebuttable presumption of 50–50 custody will become the norm. That change is happening now, although I am appalled at how slowly. 

There are many reasons why a 50-50 custody award is not the presumptive/default physical child custody award. I will list those reasons in the order of what I believe to be the strongest to the weakest. I do not mean that the strength of an argument depends upon how intellectually rigorous and honest the reason is. I mean how entrenched the reason is in society and in the legal culture. 

#1. Nothing else comes close: sexism. Any knowledgeable and experienced divorce and family law attorney will tell you that although sexism is not as strong as it once was a generation or two ago, it is still alive and kicking the butts of fit fathers who are denied the joint equal physical custody of their children. It is as shocking as it is terrifying as it is disgusting to see mothers and their lawyers make sexist arguments that the court’s still accept. Such as? 

  • Children, especially young children, need to spend more time with their mother than with their fathers. 
  • Women are born nurturers, more naturally competent parents than are men. 
  • Children are more strongly bonded to their mothers than to their fathers. 
  • (This one is particularly insulting) men who want more than minimal custody and parent time with their children do so to avoid having to pay child support. 
    • While it is true that some men don’t really want to be that involved in their children’s lives, yet seek sole or joint custody simply to reduce the amount of child support they have to pay without having any intention of engaging in the level of responsibility that a joint equal physical custodian should, to suggest that men in general want joint custody solely or primarily to save money is a pretty damn cynical view of men, not to mention a pretty damn false one. Think about it. If men wanting joint custody are motivated by greed, does that mean that women wanting sole or primary physical custody of their children are motivated by greed as well? 
    • We all know plenty of women who oppose a joint custody award and seek a sole or primary custody award precisely for the financial benefits primary or sole custody confers. It is unfair to presume that either mothers or fathers inherently seek a child custody award that is the most financially advantageous at the expense of their children’s emotional and physical well-being. 

#2. Unscientific and pseudoscientific principles (that are usually, though not always, invoked to mask the blatant sexism). Such as? 

  • Children should not be going back and forth like ping-pong balls between their parents’ respective homes 
    • There is some truth to this, but only under certain circumstances. The way I explain it to my clients and to legal professionals with open minds (few though there are currently) is that joint equal custody doesn’t benefit children if the parents live so far away from each other that the children don’t have access to the same group of friends and other familiar surroundings and resources. 
    • If mom and dad live many miles apart, the kids end up having no friends in either mom’s neighborhood or dad’s neighborhood. Here’s why: they are only in mom’s neighborhood half the time and only in dad’s neighborhood half the time. that makes it hard to make friends in either neighborhood. And so the kids often end up with no friends in either neighborhood. Certainly no close friends. They don’t go to church with the same kids on the weekends. While they may go to one school, if that school is in one parent’s neighborhood, then the kids don’t do anything with their friends after school on the days and weeks when they are with the other parent. 
      • Some parents and lawyers and judges think that the solution to this problem is having the children go to a school centrally located between moms and dads house. this almost never works well. the kids may have friends at school, but because they do not live in the neighborhood without school is located, their friendship is limited to the time they spend at school. 
    • Joint equal physical custody works best for children when the parents live within walking distance of each other, when the parents reside in the same neighborhood and school district and parish. Yet even when these circumstances exist, I’ve seen courts that still refuse to award of joint equal custody claiming that going back and forth between moms and dads house is a problem in itself, not a symptom of parents who live too far apart. 
  • joint equal custody makes it hard for kids to follow two different sets of rules in each parent’s home. What utter bilge. Sure, if the environments and rules in each parent’s home are so radically and catastrophically different from one another as to do the children harm, then perhaps joint equal custody can’t work. But such a scenario just doesn’t arise often enough to dismiss the idea of joint equal custody out of hand on this basis. The majority of parents are going to agree upon things like diet and bedtimes, and those parents who aren’t in total agreement will likely have rules and routines that don’t differ enough to do the children harm (such as bedtime at mom’s being 8:30 p.m. and bedtime at dad’s being 9:00 p.m., or mom may eat out with the kids more often than dad does— these are differences that are going to do the children long-term damage, if any damage at all). 

There is one legitimate reason why every child should not be in a 50–50 physical custody arrangement: when the circumstances of the parents and children are not conducive to a joint equal physical custody (50-50″) award. 

  • Sometimes the circumstances of one or both parents makes joint equal physical custody more trouble than it’s worth, of no benefit to the child, or even deleterious to the child. 
    • Work schedules and distance between the parents’ respective homes may not be conducive to the exercise of joint equal physical custody.

If a parent is unfit to exercise custody of a child, then that’s not really a problem with joint equal physical custody, but a matter of the parent’s incompetence. Holding father to a burden of proof that presumes them to be unfit until proven otherwise, is patently irrational, unconstitutional, and fundamentally unfair and gratuitously harmful to children and fathers alike. 

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

https://www.quora.com/Why-isnt-50-50-custody-the-default-resolution-in-child-custody-cases/answer/Eric-Johnson-311?__nsrc__=4&__snid3__=31406040166 

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How can I enforce my power when I have final say in joint custody?

My sons father and I have joint custody but I have final say over his well being health and education. How can I enforce my power? 

If you are asking: “How do I enforce in good faith my final say authority over our son’s well-being, health, and education when the other parent and I do not agree?,” then the answer is (depending upon the jurisdiction’s requirements) typically: 

  • go to mediation to try to resolve the dispute, and if that does not work, then 
  • file a motion with the court seeking an order that compels your ex to comply with your final decision-making authority. 

Don’t take this the wrong way, and I realize that there is more than one way to interpret the meaning of your question, but the fact that you would ask how you can “enforce” your “power” without ever expressing any concern for the welfare or best interest of the child raises questions as your motives for exercising that power. A parent wants to exercise power for the sake of lording it over the other parent is clearly unworthy of that power and should be stripped of it for the sake of the child’s welfare and best interest. 

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

https://www.quora.com/My-sons-father-and-I-have-joint-custody-but-I-have-final-say-over-his-well-being-health-and-education-How-can-I-enforce-my-power/answer/Eric-Johnson-311  

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How do we counteract the adverse effects of trusting custody evaluators?

The question was asked: In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? 

This is a great question, but not for the reasons you may believe.  

The problem isn’t the errors the evaluators make (as if to suggest that all that is needed is for the evaluators to get more accurate, as if that is even realistically possible). The problem lies in being so trusting of custody evaluators’ recommendations for child custody and visitation (also known as parent time) decisions. These so-called experts are little better than a coin toss when it comes to getting to the truth not only about spousal and/or child abuse allegations but about virtually any factor affecting the child custody and parent time award. 

It’s not really a matter of trust. It’s a matter of analytical and jurisprudential sloth, a matter of passing the buck to so-called experts who aren’t really experts, whose involvement helps get to truth and sound understanding no better than than does their absence in the custody and parent time analysis. 

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

(35) Eric Johnson’s answer to In a study in 2012 proved many custody evaluators falsely believe most DV victims lied & alienated kids. So How do you prevent that evaluators report from poisoning all reports or evaluators after, since they always review historical reports? – Quora 

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Do courts penalize working parents?

Why do the courts give full custody to a parent who refuses to work but yet reduces custody of the working parent, saying they work too much?

In the belief that a parent who does not work outside the home is in a better position to take care of the child(ren) because it is presumed (rarely, if ever, proven) that the stay-at-home parent does not neglect the children at home.

As you implied, the parent who was the sole or primary breadwinner is far too often penalized based on the presumption (rarely, if ever, proven) that having a job renders that parent unable to provide adequate personal care, attention, and supervision of the children for the amount of time that parent seeks with the child(ren).

But if a parent with a job works so many hours and/or works a schedule that is simply not conducive to exercising joint custody of the children, that parent can’t get upset if the court takes that into account when crafting child custody award that does not award joint custody.

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

https://www.quora.com/Why-do-the-courts-give-full-custody-to-a-parent-who-refuses-to-work-but-yet-reduces-custody-of-the-working-parent-saying-they-work-too-much/answer/Eric-Johnson-311

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Have you, or someone you know, ever had to share joint custody of a pet due to a breakup/divorce? If so, how did that work out? Was the time actually 50/50?

Many married couples are now foregoing having children but still feel a need for caring for something other than themselves individually and for each other, and so they get a pet or pets. They truly love these pets. They honestly see these animals as a part of the family. 

Now just because devoted pet owners perceive and treat their pets the same as they would a child or almost the same as they would treat a child does not elevate their pets to the status of children. 

Nevertheless, one can easily provide for shared joint custody of pets in a divorce settlement and decree. I have prepared such settlements and decrees myself. 

Just as there are some parents who refuse to set aside their animosity for one another for the sake of the children when it comes to exercising joint custody of their children, there are divorced pet owners who act the same way. Such as: 

  • using the ex-spouse’s love for the pet as a way of tormenting the ex-spouse by: 
    • withholding shared custody of the pet; 
    • abusing and neglecting and otherwise mistreating the pet; 
  • failing and refusing to notify one’s ex-spouse about the pet’s health and healthcare needs, then contriving to accuse the ex-spouse of abusing or neglecting the pet, either as a way of falsely making the ex-spouse look like a criminal or simply as a way of falsely making the ex-spouse feel like a miserable failure; 
  • using the shared connection to the pet as a way of insinuating oneself into the ex-spouse’s life as a newly single person (refusing to move on, by using the pet as a pretext to maintain a relationship—even a dysfunctional and toxic relationship—with the ex-spouse, even when the ex-spouse clearly doesn’t want such a thing).

So it’s really not a question of whether pets are hard to share joint custody of, it’s a question of whether each ex-spouse can put the interests of their pets before his/her own individual self-interest. 

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

https://www.quora.com/Have-you-or-someone-you-know-ever-had-to-share-joint-custody-of-a-pet-due-to-a-breakup-divorce-If-so-how-did-that-work-out-Was-the-time-actually-50-50/answer/Eric-Johnson-311?prompt_topic_bio=1  

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If a married couple divorces and neither one wants their child, what happens?

Great question. I have discussed this question with others. Their first reaction to the question is along the lines of “Oh, that’s terrible!,” but then we discuss the fact that there are those rare and exceptional families we’ve either known of or heard of in which the parents are good folks, but their children are, despite the parents’ best efforts, impossible to get along with (yet the kids aren’t bad enough to be arrested and locked away).  

I’ve never encountered such a situation as a divorce lawyer, but I wouldn’t be the least bit surprised if I do some day (there is an old joke about a couple who didn’t get a divorce because neither wanted custody of the kids). 

What I have encountered on occasion is a family in which some of the children hate (or at least don’t get along with) one of their parents, and love (or at least tolerate) the other parent, resulting in a split custody award; resulting in Connor and Madison living with Mom, while Jordan and Chloe live with Dad.  

Now back to your divorce scenario where neither Mom nor Dad can stand their kids and neither Mom nor Dad want custody of their kids. What makes your scenario so odd is that we don’t have a process for dealing with it. When parents are bad and the kids are innocent, we have a mechanism by which the state can take the kids from the bad parents and place the children in foster care. If the children are delinquent, we can take them out of Mom’s and Dad’s home and place them in juvenile detention.  

But if 1) the kids aren’t criminals or mentally ill to the point that Mom and Dad simply cannot or should care for them; and 2) Mom and Dad are both fit parents (i.e., law-abiding, non-violent, non-neglectful, able to take care of the children and to provide them with the necessities of life), then Mom and/or Dad would almost certainly be forced to continue to honor their obligation as parents at least to provide the children food, shelter, clothing, and education.  

Usually the court has to deal with parents who are fighting to get sole or joint custody of the kids, not to foist custody on the other parent. So some judges wouldn’t know what to do when each parent comes into court fighting tooth and nail to ensure that he/she doesn’t get “stuck” with custody of the children.  

Such a situation would give rise to a new twist on an old child custody litigation scam. Rather than each parent falsely (and ludicrously) accusing the other of being abusive and neglectful in an effort to “win” custody, each parent would be falsely accusing himself/herself, so that he/she is declared unworthy of being awarded child custody. I won’t lie; given the volume of false allegations parents selfishly make against each other without considering what that does to the kids, flipping the child custody fight script would be as hilarious as it is tragic.  

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

https://www.quora.com/If-a-married-couple-divorces-and-neither-one-wants-their-child-what-happens/answer/Eric-Johnson-311?prompt_topic_bio=1  

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Can a narcissist get custody of a child?

Of course.

First, even if one could prove a parent suffers from narcissistic personality disorder (NPD), merely suffering from this condition wouldn’t automatically disqualify a parent from being awarded sole or joint custody of children. Merely suffering from a condition isn’t the same as being disabled by a condition. For example, if a parent suffered from kleptomania (an impulse control disorder characterized by the recurrent irresistible urge to steal things one does not need), but The condition in check by not stealing, being a kleptomaniac alone wouldn’t the any reason to deprive a parent of a child custody award. Likewise, if a parent suffered from a serious heart condition, but was adequately treating the condition and thus able to take care of children adequately, merely having the condition would not render the parent unfit. Mere NPD itself isn’t a factor in the child custody award analysis, it’s bad behavior. So, if a parent is abusing or neglecting the children because of his/her NPD, it’s not the NPD that concerns the court, it’s the abuse and the neglect stemming from it. See?

Second, NPD is a mental health condition, a personality disorder, and thus difficult to establish as a matter of fact. It’s invisible. It’s not like blindness or paralysis, something easily identifiable, where the effects of it are easily identifiable as well. Additionally, NPD is somewhat subjective. One psychologist might diagnose someone with NPD, another might not. and as you might imagine, in a divorce and child custody setting, it’s not hard to find (if one wants to play that game) dueling “experts” (some lawyers call them rent-a-docs) with diametrically opposed opinions on the subject of NPD.

Third, even if you knew that your spouse suffers from NPD and that the NPD poses a serious risk of emotional, mental, and/or physical harm to your children, if the judge doesn’t believe in NPD or believe that the NPD is a big problem, then what you know doesn’t matter at all when it comes to the court making the child custody award. Courts take claims of mental health problems with a grain of salt, and understandably so. Given that mental health condition diagnoses can be so subjective, that they aren’t “tangible,” as easy to identify as being blind or deaf or paralyzed or epileptic, etc., courts are uncomfortable with taking it on faith that a mental health condition is a serious problem that could potentially affect the child custody award.

Bottom line: if you are pinning your hopes of winning the child custody battle on proving that your spouse suffers from NPD, you’re barking up the wrong tree. That stated, NPD could be part of a number of problems that, in the aggregate, may disqualify your spouse from being awarded the kind of custody award he or she desires, but on its own merely being diagnosed with NPD is rarely, if ever enough. In 24 years of practice I have never seen a parent denied custody or had his or her child custody award curtailed because of NPD, and I doubt I ever will. It’s not the tendencies or the urges that harm children (and thus affect the child custody award), it’s bad behavior that does.

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

https://www.quora.com/Can-a-narcissist-get-custody-of-a-child/answer/Eric-Johnson-311?prompt_topic_bio=1

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What are the laws for joint custody?

For the jurisdiction where I practice divorce and family law (Utah), the laws the court must consider are found in Utah Code § 30-3-10, 30-3-10.2, and, if the question of joint equal custody is in issue, § 30-3-35.2. The list is long, but worth knowing (frankly, you must know about these factors and be able to argue them in your favor) if you anticipate a fight over child custody:

 

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 10 (Custody of a child — Custody factors.)

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

(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.

(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 of age 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.

(c) Nothing in this section may be construed to apply to adoption proceedings under Title 78B, Chapter 6, Part 1, Utah Adoption Act.

(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.

(9) When an issue before the court involves custodial responsibility in the event of a deployment of one or both parents who are servicemembers, and the servicemember has not yet been notified of deployment, the court shall resolve the issue based on the standards in Sections 78B-20-306 through 78B-20-309.

(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, Title 26, Chapter 61a, Utah Medical Cannabis Act, 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 26-61a-102;

(iii) medical cannabis courier agent, as that term is defined in Section 26-61a-102; or

(iv) medical cannabis cardholder in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act.

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 10.2 (Joint custody order — Factors for court determination — Public assistance.)

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.

Utah Code Title 30, Husband and Wife, Chapter 3, Divorce, Section 30-3-35.2. (Equal parent-time schedule).

Section 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.

 

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

 

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Should a father who has shared custody see the child son when there is a hospital emergency?

Should a father who has shared custody rights of his child still see the child son when there is a hospital emergency? If your child is in the hospital during your time of custody should you be with the child or should the mother?

Unless:

  • there is something about the father visiting/supporting the child in the hospital that would pose a clear risk to the child’s health or recovery; or
  • the child and father have a terrible relationship such that the child truly doesn’t want the father to visit (or, to a lesser degree, the father despises the child to the point that visiting the child in the hospital would do the child more harm than good),

then there is no reason that both loving parents should not be there to comfort, soothe, reassure, support, and encourage the child in the hospital. Indeed, the child may be saddened if the father doesn’t visit in the mistaken belief that only a mother should be in the hospital with the child. It could very well be that the presence of the father may facilitate healing and that the father’s absence may impede the child’s recovery. Regardless, if the child feels shunned or abandoned by his father’s failure/refusal to visit the child that could have irreparable effects on the father-child relationship later.

However, I understand that there may be more to your question than may appear on the surface. Sometimes, when parents divorce, one of the parents may become very “territorial” about the child, claiming to be the “better,” the “more informed/capable” or the “more necessary” or “more caring” parent in a medical emergency. Such a parent will then assert his/her superior parental status as a reason for barring the other parent from having any contact with the child on the ostensible grounds that “it’s in the best interest of the child”. That’s nonsense.

Still, if a parent’s good and proper desire to support and care for a child in the hospital is what leads the other parent to stir up trouble that could have a deleterious effect on the child and/or the child’s condition, a parent may find himself/herself “surrendering” to the obstreperous, alienating parent for the sake of protecting the child from the conflict. That’s as appalling as it is heartbreaking, but it happens, and it’s no mystery why when it does.

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

https://www.quora.com/Should-a-father-who-has-shared-custody-rights-of-his-child-still-see-his-son-when-there-is-a-hospital-emergency-If-your-child-is-in-the-hospital-during-your-time-of-custody-should-you-be-with-the-child-or-should-the/answer/Eric-Johnson-311

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