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Tag: joint equal custody

My children’s father is a bum. Can he get 50/50 custody awarded?

The question is: I’m a stay at home mom, my BD is always working unreliable and inconsistent hours, he wants 50% custody of our son. Will he be granted 50%? His hours always vary from 4pm 7pm 9pm even 2am at times. 

Understand this: it’s not a matter of what you know to be the facts, it’s whether 1) you can prove the facts; and 2) persuade the court that these facts warrant or require that the court rule in your favor and as you want. 

The court cannot know what you know unless you can prove it to the court itself or persuade the court to believe what you say is true.  

Now if the father’s work schedule is not conducive to an equal physical custody schedule and you can prove that, the court will likely rule against a joint physical custody award. If you believe that all you have to do is tell the court, essentially, “The father’s work schedule is not conducive to an equal custody award,” your odds of succeeding on this issue are slim.* 

*But because you are the woman, there is an inexcusable possibility that the court might purport to find as a matter of “fact” that what you say is true—not because you proved it (you obviously didn’t prove it objectively or by a preponderance of the evidence) but because the court simply does not want to award equal custody, does not intend to award equal physical custody, and will look for any hooks upon which to hang that hat.  

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

https://www.quora.com/Im-a-stay-at-home-mom-my-BD-is-always-working-unreliable-and-inconsistent-hours-he-wants-50-custody-of-our-son-Will-he-be-granted-50-His-hours-always-vary-from-4pm-7pm-9pm-even-2am-at-times/answer/Eric-Johnson-311  

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Can being a noncustodial parent improve the child-parent relationship?

Can being a noncustodial parent improve the child’s relationship with the noncustodial parent?

Recently, a reader on Quora, where I comment regularly, commented on a post of mine with this: 

Anecdotally: When my parents separated I felt I saw my father more because when they lived together simply being in the house was considered fathering. This is something I’ve heard from many fellow adult children of divorce. Suddenly Dad was actually doing something with us and having full conversations. 

I responded with this:  

Thank you for reading and for commenting. I don’t know you, your father, or your collective circumstances, but assuming generally that a father was neither abusive or neglectful (most fathers who become “noncustodial” parents in divorce are in this category), but the children were nevertheless deprived of being in the equal care and custody of their father and mother and Dad was deprived of equal custody of the children, how often do you think that a divorce awarding “sole” or “primary” custody of the children to one parent results in the children’s relationship with the other parent improving? To what degree did any aspect of the children’s lives improve? Right. Not often, not much. Indeed, just the opposite is the case.  

While there are some abusive, neglectful, and/or indifferent fathers out there, they are few and far between compared the vast majority of fathers. When fit, loving fathers (not perfect fathers, mind you) are cut off from their children by court order for even a few days, it is heartbreaking to father and children alike.   

Few parents had children without wanting to be there for them as much as possible and for them to be with that parent as much as possible. Although parental rights are not earned from the state or conditioned upon the state’s approval, that’s essentially how custody policy and law have come to function.  

Marginalizing a fit parent in a child’s eyes by reducing that parent to visitor, second-class, “backup” status necessarily marginalizes the child. “You don’t get the equal (i.e., the maximum) love and care of both parents, boy.” By depriving him/her of equal custody of his/her children with the other parent is to deprive the children of each parent exercising equal responsibility for the children, and to deprive the children of what is in their best interest. 

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

https://www.quora.com/From-a-lawyer-s-perspective-why-do-women-get-child-custody-almost-90-of-the-time-Is-there-really-a-bias-What-factors-come-into-play-when-deciding-about-it/answer/Eric-Johnson-311

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What are the chances of a mother getting full custody?

In my experienced opinion: 

If the fight is over which parent will be awarded sole (full) custody of the children, and if no other factors are considered: the chances of a mother winning full custody of the children are always better than the chances of a father winning full custody of the children. 

If the mother is seeking sole custody, but the father is seeking joint equal custody, and if no other factors are considered: then 1) unless you are in a jurisdiction in which it is the law that joint custody of children shall be presumptively awarded, 2) unless that presumption is (honestly) rebutted, and 3) the courts in such a jurisdiction actually follow that law and the facts, the odds still favor the mother, though not as much as when the parents are both seeking sole custody. The father has to work much harder than the mother to persuade the court to award joint equal custody than the mother does to persuade the court to award less than joint equal custody. 

If the mother is seeking sole custody and the father is seeking joint custody, but is not seeking joint equal custody (meaning that the father is not limited to the statutory minimal amount of visitation or parent time but is also not awarded the same amount of time with the children as is the mother) and if no other factors are considered: then the father may have a decent shot at winning a “more than minimum and less than equal” joint custody award. Why? Because I think that when a court is sexist it likes the “booby prize” look and sound of a child custody award that has the word “joint” in it. The thinking seems to be in the minds of such judges, “Hey, be grateful I awarded you something better than minimal time with your kids. It could’ve been worse.” 

Loving, fit fathers who want the children to have the benefit of being reared equally by both parents are often shocked and then heartbroken to learn that such a sentiment generally doesn’t get a very warm reception from the courts. There is an amazing and shameful amount of sexual discrimination against fit fathers in the child custody decisions of courts, even after giving the courts credit for a slow trend of decreasing discrimination. 

I am not exaggerating when I state—as a divorce and family lawyer who has fought these battles for fathers—that generally (except in the extremely “progressive” jurisdictions) 1) fathers have to work 20 times harder to win sole custody (when that is truly what is best for the children) than a mother does to win sole custody and 2) fathers have to work at least 10 times harder to win joint equal custody (when that is truly what is best for the children) than a mother does to win sole custody. 

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

https://www.quora.com/What-are-the-chances-of-a-mother-getting-full-custody/answer/Eric-Johnson-311  

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What is the argument for hearing a child’s view in a custody decision?

What argument supports taking the views of a child into account when making custody determination?

The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider. 

In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5: 

When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper. 

You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody. 

In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them. 

[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.] 

Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child. 

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

https://www.quora.com/What-argument-supports-taking-the-views-of-a-child-into-account-when-making-custody-determination/answer/Eric-Johnson-311  

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If you have 50/50 custody, how much vacation time from kids is approriate?

If you’re separated and have 50/50 custody, how much vacation time away from your kid is appropriate?

Too many variables to consider to give you an intelligent answer. 

How old is the child? How “clingy” is the child? How long is the child accustomed to being away from you already? What, if any, people and assistance do you have in place to care for the child while you are in vacation, if your ex is not willing to provide care and supervision for the child in your absence? At what point is X number of days away from the child having an unnecessarily adverse effect on the child? 

Once you have these questions answered, you will know how much vacation time away from the child is appropriate for you. 

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

https://www.quora.com/If-you-re-separated-and-have-50-50-custody-how-much-vacation-time-away-from-your-kid-is-appropriate/answer/Eric-Johnson-311  

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Are mothers being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more and more?

No, mothers are not being treated “worse” by the legal system these days, with more and more states leaning toward awarding joint custody to fathers more.

Mothers do not have an inherent or presumptive right to be awarded the sole or even the primary custody of their children. This idea is known (was known) as the “tender years doctrine,” which has been determined to be sexually discriminatory in most jurisdictions in the U.S.A. (perhaps all jurisdictions, I don’t know for certain).

It is undeniable that fathers today are generally being treated more fairly in the child custody award analysis, and that trend appears to continue, but as a general matter fathers are still presumed to be second class parents and discriminated against accordingly.

To be sure, there are children whose best interests are ignored in favor of the court indulging personal and cultural biases. And this mistreatment sometimes includes (but is not limited to) when the child custody award is made. I cannot deny that there are mothers and fathers who are mistreated by the legal system, but it is my experience and opinion that–with the exception of a current large but slowly decreasing number of jurisdictions–for every mother who are cheated by the system, there are dozens of fathers who suffer the same unfair fate.

Some people believe that their lawyers “know” that their clients “obviously” want sole custody of their children when a child custody battle arises. Not true. Tell your lawyer what kind of custody arrangements you want and why. Your lawyer, if he/she is a good lawyer, will evaluate the strengths and weaknesses of your position and tell you whether he/she believes you can get what you want or whether you’re setting your sights too high or even too low.

Some people believe that if both parents have no history of spousal or child abuse that the court will “automatically” award the parents 50/50 legal and physical custody of their children. Not true. Not even usually true.

Some people believe that unless you or the other parent wants to fight over child custody, that the court will award the parents joint equal legal and physical custody of their children. That is not true of all jurisdictions. In my estimation, most jurisdictions do not presume that joint equal legal and/or physical custody is best for children, and even in those jurisdictions that do have such a presumption, if one of the parents objects to such a presumptive custody award, the court will hold hearings and/or a trial to determine whether the presumption has been rebutted.

At the time I write this, I’ve been practicing divorce and family law for 24 years, and it’s simply a fact that while it is getting easier for men to get a fair shake in the child custody fight, in most jurisdictions it is easier for a mother to win primary physical custody of the children than it is for a father to win primary physical custody of the children or even joint equal physical custody of the children.

In my experience as a divorce and family lawyer in Utah, most courts never even give a father seeking merely joint equal physical custody so much as a losing chance to prove he can exercise joint equal custody in the children’s best interest. Such courts just presume that for whatever reason(s)—real or imagined—the father can’t hack it, and then they make their child custody awards accordingly.

Some courts subconsciously discriminate, not even realizing what they are doing, just taking for granted that “children belong with their mother” and “children don’t need more than a few weekends and holidays and a few hours each week with their dads” and/or “dads don’t really want their kids to be reared equally by both parents”. Courts that deliberately discriminate will selectively cite to the facts and/or fabricate facts to support their foregone custody award conclusions. I’ve witnessed these scenarios personally time and again as a lawyer. And I represent both men and women. I don’t have a personal stake in my observations. I’d like nothing more than to say, “The system doesn’t discriminate against fathers anymore,” but at this point in my career, I cannot honestly say so.

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

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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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Pro-fairness and Pro-child

Pro-fairness and Pro-child

Recently, public service YouTube channel I run (UFTLV – Utah Family Law TV – not run by or run to support Utah Family Law, LC) received a comment on this video:

Do you think it’s fair that Brad Pitt got joint custody of his kids?

The comment:

“I’m pretty convinced this channel is a pro fathers [sic] rights movement channel. Its [sic] not surprising at all he got joint custody. Its [sic] an automatic presumption nowadays for mother and father to share joint custody.

My response follows below:

Thank you so much for watching and for commenting. You are mistaken on both counts. 1) This is not a pro-father’s rights channel (nor is it a “pro-mother’s rights” channel). It is a pro-fairness, pro-child, pro-due process, and pro-common sense channel. 2) It is not automatically presumed everywhere that child custody will be awarded to both parents on a joint custody basis.

1) For generations mothers were (and still remain in most jurisdictions) presumed to be “the better parent” simply by virtue of their being mothers/women, without evaluating the parental fitness of each parent to determine whether the children would be best served by a sole or joint child custody award. It was (and still is in many jurisdictions) believed that children need to spend more time in their mothers’ care than in their fathers’ care, even if and when the father is ready, willing, and able to share joint equal custody of the children.

2) While there are more and more states in the U.S. passing laws that presume the parents will be awarded joint legal and joint physical custody of their children, many states have no such presumption and many states still treat fathers as second class parents when it comes to making the child custody award. I myself have been told by a judge just this year that “it’s not the quantity of time the children spend with their father but the quality that matters.” But quality of time parents and children spend together is a factor of quantity. Where both parents are fit parents, the “best parent” is both parents. Children deserve no less than joint equal custody in such situations. Fit parents deserve no less as well.

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

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When flawed thinking is tragic thinking (thank goodness)

I frequently encounter comments made in child custody disputes to the effect that “courts favor the nurturing and detailed attentiveness of mothers over fathers.” 

I am as grateful for such comments as I am disheartened by them. Grateful because they reveal a common and recurring flaw in so many people’s thinking—and identifying the problem is the first step toward solving it. Disheartened because they reveal a common and recurring flaw in so many people’s thinking—which makes correcting it such a daunting task.  

Such comments commit the fallacy of indulging a sexist, stereotypical, and (thus) false presumption that “good mothers are better and more necessary parents than good fathers.” When courts commit this fallacy, then the notion of basing a court’s decisions on evidence and proof in each individual case are illusory. Yet frankly, that is exactly what most judges do in making the child custody award.  

Some judges do this by essentially requiring a good father to “prove” that he is “just as good as and just as qualified a parent as” as an archetypal mother. This is an impossible standard for a father to meet because a) such archetypes necessarily exist only in the imagination, not in the real world; and b) not only can real-world fathers not meet this impossible standard, but neither can real-world mothers, for that matter.  

These judges follow unwritten rules that rig the game (some judges knowingly rig the game, others do so unwittingly due to their deep-seated biases and prejudices):  

1) that to be worthy of joint physical custody of their children fathers who are good parents by every reasonable standard must be the equivalent of mothers; and  

2) good mothers possess crucial and unique qualities fathers cannot possess.  

Thus, merely good fathers can never be worthy of sharing joint equal custody with a good mother. Perversely, for a child to enjoy being reared by both good parents equally, the father must prove either himself superior as a parent to the mother (which, as I have demonstrated above, is virtually impossible) or show the good mother to be found wanting (in one way or another) such that the only way to compensate is “unfortunately” an award of joint equal physical custody to the father.  

Decent, loving, fit parents never have been and never will be perfect, which is why I cannot understand how a court would deny a child the benefits of being reared as much as possible by both of its decent, loving, and fit parents. This is why (to crib from C.S. Lewis) asking which of a child’s fit and loving parents is the “better” or “more necessary” parent is like asking which blade of the scissors is better or more necessary.  

The “best parent” is both good parents. Give the child the benefit of all of the good traits each good parent brings to a child’s upbringing. We cannot expect a child to tailor the fabric of his life successfully with only one blade of the scissors in hand. As a recent billboard so poignantly states, “You don’t have to be perfect to be a perfect parent.” 

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

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After a divorce, should my kids be with me or with the mom?

First, you need to understand that you’re asking the wrong question.

Child custody is not a zero-sum game; otherwise stated, when parents divorce, or when unmarried parents separate, where you get the idea that the children must be in the custody of one parent or the other, but not in the joint custody of both?

Perhaps it has come from the idea you been taught most of your life that children of divorced or separated parents must spend the majority of their time in the custody of one parent. I’m 52 years old at the time I write this, and throughout my youth I was taught that very thing.

Not only were we taught the children should spend most of their time in the custody of just one parent, but we were taught that the parent that should be the “custodial” or primary custodial” parent was the mother. Almost always the mother. The mother, unless it could be proven that the mother was heinously unfit to have custody of the children. It was not uncommon to hear about perfectly good and decent fathers not being awarded custody or not being awarded joint physical custody of their children even when mom had a substance abuse problem or was physically and/or emotionally abusive.

The idea that children could be or should be cared for equally or as near to equally as possible by both parents was in the not so distant past unthinkable. The idea of children being cared for by their fathers was believed to be emotionally and psychologically damaging to children, especially very young children. The more research that is conducted on the subject, however, the more we learn that such thinking is wrong. I’ll be the first to admit that, especially in American culture, it seemed somewhat intuitive to believe that children might need or fare better in the care of their mothers instead of their fathers, but it turns out that’s false.

Unfortunately, the legal profession and the courts have been very slow to accept, let alone embrace, this fact. But things are changing in the legal profession and the courts, and at a comparatively rapid pace.

Now (I write this May 27, 2021), things are different, or I should say they are becoming different. As well they should be. Just as this country realized it made no sense to make the black man or woman sit at the back of the bus and that all citizens deserve fair and equal treatment under the law, it makes no sense to deny children of as much love and care and companionship of both of their loving, fit parents as possible.

To crib from C.S. Lewis a bit, asking which fit parent the children are better off with is like asking which blade of the scissors we’re better off with.

When children have to loving, caring parents who are physically and emotionally and financially capable of providing the minimally necessary levels of care their children require, there is no to deny children the benefits of being reared by both parents equally. Period.

I am a divorce lawyer in Utah. For those of you who are currently facing or who are contemplating a possible divorce or child custody dispute in Utah, you may find these statutory criteria that the courts are supposed to apply when making child custody determinations:

Utah Code:


Section 10
. Custody of a child — Custody factors.

Section 10.1. Definitions — Joint legal custody — Joint physical custody.

Section 10.2. Joint custody order — Factors for court determination — Public assistance.

And these sections are worth reviewing to get an idea of what the definitions of child custody are, whether that be legal custody or physical custody:


Section 33
. Advisory guidelines.

Section 34. Parent-time — Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

Section 35. Minimum schedule for parent-time for children 5 to 18 years old.

Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.

Section 35.2. Equal parent-time schedule.

Section 35.5. Minimum schedule for parent-time for children under five years of age.

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

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Father has 50/50 custody. Now ex is trying to take it away. What to do?

I am a father who has exercised at least 50/50 custody with my ex. Now she’s trying to take me to court for full custody and me getting every other weekend visits. How can I avoid losing 50/50 custody?

First, thank your lucky stars you are a father who currently has 50/50 custody of his children. Far, far too many fit and loving fathers who could easily exercise joint equal physical custody of their children and whose children would do nothing but benefit from the exercise of joint equal custody are needlessly and unjustifiably denied a joint equal child custody award by courts who simply cannot bring themselves to believe, much less conceive of, the idea that children being reared by both parents equally is better than relegating one parent to second class visitor status in his child’s life.

Second, the fact that you have been exercising at least 50–50 custody of your children for the past few years helps to make it much harder for your ex to build a case against you for modifying the child custody award in a manner that deprives both father and children of a 50–50 custody schedule. Again, be grateful this is the case, because if you were trying to win 50–50 custody of your children on the first go around during your divorce or other child custody legal action, the odds are grossly stacked against fit and loving fathers.

Third, if you are afraid that your judge is going to discriminate against you on the basis of sex, you need to understand this principle: “if it isn’t close, there cheating won’t matter.” Otherwise stated, you need to ensure that you win six ways from Sunday. you have to bring overwhelming amounts of evidence and proof into court, so that you leave the judge no option but to rule in your favor. Easier said than done, certainly, but now is not the time to become complacent or substitute hope for effort. Spare no expense to preserve your joint equal physical custody award. A necessary component of a winning case is that you are living a life beyond reproach. Get your house in order. If there is anything remotely amiss in your life, correct course immediately, clearly, and permanently.

Fourth, make sure you understand and that your attorney understands what statutory and case law factors and criteria govern the original child custody award and a petition to modify the original child custody award. It may be that your ex does not have sufficient grounds for a petition to modify child custody to survive a motion to dismiss.

Fifth and finally, do not take on a petition to modify child custody alone, without a vigilant and skilled attorneys assistance. There is an undeniable culture of bias and discrimination and prejudice against fathers when it comes to courts making child custody awards. This doesn’t mean that every judge in every court indulges in sexual discrimination against father, but it’s virtually impossible to tell the difference between an impartial judge and a biased one, and so you need an attorney who will not suffer fools gladly, who will defend the joint equal custody award.

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

https://www.quora.com/As-a-father-I-have-50-50-split-custody-with-my-ex-and-then-some-now-shes-trying-to-take-me-to-court-for-full-custody-every-other-weekend-visits-how-can-I-avoid-loosing-ny-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

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

https://www.quora.com/How-exactly-does-shared-custody-work-Does-the-child-end-up-being-like-that-kid-from-Jacqueline-Wilsons-The-Suitcase-Kid/answer/Eric-Johnson-311

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

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

Who should care and why?

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

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

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

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

S.B. 122:

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

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

NEWLY CREATED § 30-3-35.2 READS AS FOLLOWS:

30-3-35.2. Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:

(i) the equal parent-time schedule is in the child’s best interest;
(ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.

(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider:
(i) each parent’s demonstrated responsibility in caring for the child;
(ii) each parent’s involvement in child care;
(iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

(iv) each parent’s assistance with the child’s homework;

(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.

(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school;
(ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6);
(iv) the flexibility of each parent’s employment or other schedule;
(v) each parent’s ability to provide appropriate playtime with the child;
(vi) each parent’s history and ability to implement a flexible schedule for the child;
(vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.

(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.

(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.
(e) (i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:

(i) one parent shall exercise parent time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.

(b) The child exchange shall take place:

(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.

(4) (a) The parents may create a holiday schedule.

(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:

(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.

(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.

(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.

(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period beings.

(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.

THE AMENDMENTS TO § 30-3-34 ARE:

30-3-34. Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:

(a) establish a parent-time schedule [consistent with the best interests of the child.]; or

(b) order a parent-time schedule described in Section 30-3-3530-3-35.130-3-35.2, or 30-3-35.5.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time
33     schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:].
(3) A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

*****

(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.

NEWLY AMENDED § 78B-12-208 READS AS FOLLOWS:

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

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

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

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

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