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.
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.
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.
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:
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.
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.
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
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
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;
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
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
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
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
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
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
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
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
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
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.
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
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.
This is something that many parents already do. It is often known as “nesting”.
Some parents feel it would be best for their children if they don’t have to shuttle back and forth between their divorced parents’ respective homes, so the parents maintain one home where the children live permanently, then the parents will take turns living in the house with the children, typically on a week on, week off basis, such that Mom is in the house for a week, then Dad is in the house for a week.
There are at least two common ways to do this. The most preferred way, which is also the most expensive, is to have three homes. One home for the children, and then one home where Mom lives when she’s not living with the children, and a home where Dad lives when is now living with the children. Another option, which requires the ex-wife annexed has been to get along well enough to share the use of our home, is for Mom and Dad to share the use and cost of a home where each of them lives when he/she is not living in the children’s home. That way you only have to have two homes in rotation. It also requires that the ex-wife and ex-husband trust each other enough and can tolerate each other enough to share a common residence, albeit one in which they would, by design, almost never reside at the same time.
Regardless of how appealing nesting might appear, it is clear that it is not an arrangement that every divorcing couple can implement successfully.
Nesting is a polarizing subject for many in the legal profession. Some think it’s a great new innovation that makes shared custody of children easier on the children. Others think it’s a goofy, burdensome, and impracticable idea; one that sounds good in concept, but does not work well in practice.
As you can imagine, nesting would become very difficult, if not impossible, to implement if either of the parents remarries. There are few people willing to have their spouses move out of the marital home every other week to spend time with their kids, or to bounce back and forth between the marital home and the stepchildren’s home every other week.
Another snag divorced parents may encounter when contemplating a nesting arrangement is the question of who owns the house where the children reside. Divorcing spouses usually want to disentangle themselves from each other financially, so they are often not eager to share ownership or be co-lessees of real property and having to deal with all of the burdens and obligations associated with it ( mortgage payments, insurance and tax payments, maintenance and repairs, usage, etc.).
It takes a special kind of ex-husband and ex-wife to make a nesting arrangement work successfully for both them and their children. Clearly, nesting cannot be for everyone. But just because it may not be easy does not mean it could be a perfect solution for particular families. The more options of which divorcing parents are aware, the better they can tailor their custody and parent time schedule for the mutual benefit of parents and children alike.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This is a good question and a question that comes up often. I will answer your question as it would apply to the law of Utah, which is the jurisdiction where I practice divorce and family law.
In many jurisdictions, who pays child support and the amount of child support that is paid is based upon both 1) the number of overnights the children spend with each parent and 2) the respective incomes of each parent.
Typically, this means that if the children spend more overnights with one parent than another, then the parent with fewer overnights will likely end up paying child support. This is why—aside from the fact that parents often want to spend as much time as possible with their children—the child custody and parent time award can often be such a highly contentious issue.
Some people believe that if the parents are awarded joint equal physical custody of their children (i.e., the children spend equal amounts of time with each parent), then neither parent pays child support to the other. while it is possible for neither parent to pay child support where the parents exercise joint equal physical custody of their children, it is not always the case. Why?
Because, as I stated above, child support is based upon not only the number of overnights the children spend with each parent, but also upon the parents’ respective incomes. If dad makes two or three times as much money as mom does, the law in Utah provides that dad will still end up paying mom some child support, even if mom and dad exercise joint equal physical custody. The reasoning behind this policy is that the children’s lifestyle needs to be maintained at both parents’ homes, and if one parent’s income is substantially less than the others, then that parent won’t be able to provide the same kind of lifestyle to the children as the more affluent parent can. And so this is why the more affluent parent will pay some child support to the less affluent parent, even if the parents were awarded joint equal physical custody.
Bear in mind, however, that the more overnights the more affluent parent has with the children, the less child support that parent will pay. By way of a quick example: a parent who has 90 overnights with the children annually will pay substantially more child support than if he/she has the children in his/her care and custody 182.5 overnights annually. and this makes sense. The more overnights a parent has with the children, the fewer overnights the children are spending with the other parent, resulting in the other parent spending less money housing and feeding the children.
So what happens if the parents are awarded joint equal physical custody, but then one of the parents foists the children on the other co-parent, such that this parent winds up caring for the children more than half of the year? Most loving parents will not resent taking care their children, but they may be upset about the fact that the child support award does not reflect the de facto child custody arrangement.
If and when one of the parents who was awarded joint equal physical custody is enjoying the lower child support obligation benefits of joint equal custody without actually exercising joint equal physical custody, that is unfair because the parent who is exercising more physical custody and providing more physical care for the children is, under Utah law, deserving of child support. So what can a parent in this position do?
The way the law is designed, the parent who has had extra custody of the children foisted upon him/her by the parent who is unable or unwilling to exercise joint equal physical custody can petition the court to modify the child custody and child support awards to reflect these changed circumstances. The petitioning parent can ask the court 1) to modify the child custody award so that it reflects the actual amount of time the children are spending with each parent, resulting in the non-compliant parent’s loss of the joint equal custody award and 2) to modify the child support award so that it awards to the primary custodial parent the amount of child support to which that parent is entitled based upon the number of overnights the children spend with each parent. I chose my words carefully here. Note that I wrote that this is the way the law is designed to work. This isn’t always the way the law functions, however.
Far too often when a parent who was awarded joint equal physical custody stopped exercising joint equal physical custody, but still insists that the child support obligation remain based on the joint equal physical custody award, and then the other parent petitions for a modification of the child custody and child support awards, what happens is this: as soon the noncompliant parent receives notice of a request by the other parent for a modification of the child’s custody and child support awards, the noncompliant parent immediately becomes compliant and immediately and faithfully resumes the exercise of joint equal physical custody. Then, by the time the case gets to trial (which is usually about a year and half after the petition was filed in court), the noncompliant parent’s argument is one or both of the following:
“See, I’m not noncompliant. Yes, I concede that there was a brief period where I was not compliant, but I was never and as noncompliant as the other parent is falsely claiming. Besides, I’ve repented, and now everything’s back on track. Clearly, there is no reason to modify the child custody and support awards.” And these argument works more often than not.
“How dare you accuse me of being noncompliant? Allegations that I have not been exercising joint equal physical custody are lies! My children are my first priority, and I treasure every moment I spend with them. I would never fail to exercise joint equal custody! If ever I have not exercised my joint equal custody time with our children, it is because the other parent is withholding the children from me!
[Now before I go any further, please understand that there are plenty of joint equal custodial parents who, being very unhappy with the joint equal physical custody arrangement (because they wanted sole custody of the children) will try to sabotage the joint equal physical custody award by lying and claiming that the other parent is noncompliant. So just because a parent who is responding to a petition to modify custody and child support denies the allegations against him/her does not mean that such a parent is lying.]
In my experience, Utah courts are reluctant to modify joint equal custody awards unless, by the time you get to trial, the accused parent is clearly still not exercising joint equal physical custody, or at least has been proven not to have exercised joint equal physical custody consistently.
Bottom line: If you and your ex were awarded joint equal physical custody of your children, but your ex is failing and refusing to exercise joint equal custody, a petition to modify the custody and child support awards will not succeed unless you have overwhelming amounts of proof that 1) your ex is not exercising joint equal physical custody as of the date you petition to modify; 2) your ex has consistently not been exercising joint equal physical custody for a substantial period of time (at least six months, in my opinion— if you try to petition to modify custody after three or four months, that may be deemed too short a period of time to establish a pattern of noncompliance); and 3) you can prove that you are not preventing your ex from exercising joint equal physical custody (because if your ex is failing and refusing to exercise joint equal physical custody, the only defense he/she may have available to him/her at that point is to falsely accuse you of withholding joint equal custody from him/her, so be prepared to prove that this is not the case—make sure you have overwhelming evidence in your defense, showing that you are not standing in the way of the exercise of joint equal physical custody and are in fact doing everything you can to encourage and foster the exercise of joint equal physical custody by your ex).
Let me count the “reasons,” both legitimate and otherwise:
Legitimate (though not necessarily legal, unless permitted by a court order) reasons:
the contact you have with the child is truly and seriously harming the child emotionally and/or psychologically;
the court has ordered contact between you and the child suspended or prohibited or limited; and/or
your ex isn’t actually blocking contact or even trying to block contact; instead, the child simply doesn’t want you to have contact with him/her while with his/her other parent
Illegitimate reasons:
your ex is a jerk who knows that it pushes your buttons when he/she blocks contact between you and your child, which is why he/she blocks contact between you and your child;
your ex is mentally ill and sincerely (though falsely) believes blocking contact between you and the child is the right thing to do;
your ex is a parental alienator who is trying to destroy your loving relationship with your child (or worse, trying to alienate the child as part of a scheme to get the child not merely to hate you, but to claim you are an abusive and/or neglectful parent, so that your ex can seek a change of the child custody award and/or get you convicted of child abuse).