Tag: non-custodial parent

If You Have Sole Physical Custody, Does That Mean Your Ex Can’t Take Your Child Out of State Without Your Permission?

I can’t speak for what the law is in all jurisdictions, but I can tell you what the law is in the state of Utah, and how the law applies here in Utah, which is where I practice divorce law.

Bear with me as I work my way up to answering your question, as some background is needed to answer the question clearly.

Merely being designated by the court as the sole custodial parent and having what is known as either sole or primary physical custody of the children does not mean that the court denies the other parent any contact with the children or any opportunity for the children to be in the other parents care and custody for periods of visitation or what is now known in Utah as parent- time.

While it is possible that a court could order that the parent who was not awarded sole or primary physical custody (the other parent is also known as the “non custodial parent”), that rarely occurs because unless a parent is found to be seriously, even grossly, unfit to have contact with the children, then the average non custodial parent he’s going to be found more than fit to exercise at least visitation/ parent-time with his slash her own kids.

So being designated by the court as the sole or primary physical custodian of the children, meaning that you have sole or primary physical custody of the children, does not give you absolute control over the children and the other parent’s, the non custodial parent’s, contact with the children and the amount of time that he or she spends with the children.

In Utah, the statutory minimum amount of parent time that a non-custodial parent gets with the children, so long as that parent is not found to be an unfit parent, is provided in Utah Code § 30-3-35.* Briefly stated, that schedule provides for the non custodial parent to get every other weekend with the children, three hours with the children each week (not every other week), up to four weeks with the children when the children are dismissed from school during the summer, and finally, the non custodial parent will alternate spending every other major holiday with the custodial parent. So what that means is that if the custodial parent gets to spend Thanksgiving with the kids this year, the non custodial parent would get to spend Thanksgiving with the children next year. The only exception to this every other holiday schedule is the Christmas or winter school break, which the parents will divide equally between them.

Now you know that the term “non custodial parent” does not mean that such a parent has no time with the children. Non custodial parents, unless otherwise ordered, we’ll get over night time with the children, just much less than the sole custodial or primary custodial parent.

So to answer your question as to whether being awarded sole custody gives you the power to dictate whether the other parent (the non custodial parent) can travel out of state with the children without your permission. Unless the court otherwise orders, the answer is no. the custodial parent cannot prevent the non custodial parent from traveling out of state with the children during the time the non custodial parent is awarded to spend with the children. If the non custodial parent wants to take the children camping out of state over the weekend, he or she Is free to do so and to do so without having to seek or obtain the permission of the custodial parent. nevertheless, when traveling out of state with the children, both parents are obligated to give notice to the other parent, so that if the parent and/or the children should suffer some mishap while traveling out of state, they can be more easily located. This notice of travel requirement is found in Utah Code § 30-3-36(2), which provides:

(2) For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:

(a) an itinerary of travel dates;

(b) destinations;

(c) places where the child or traveling parent can be reached; and

(d) the name and telephone number of an available third person who would be knowledgeable of the child’s location.

*Note that § 30-3-35 applies to children over the age of 5 years. For children under the age of 5, the statutory minimum parent-time schedule is articulated in Utah Code § 30-3-35.5.

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


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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 | | 801-466-9277

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Do you think it’s fair for a non-custodial parent to pay more child support?

Do you think it’s acceptable for the non-custodial parent to have to pay more child support because the custodial parent chooses to barely work or not work at all?  

Generally, no, it is not acceptable. In the jurisdiction where I practice divorce and family law (Utah): “Every child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children.” (78B-12-105(1). Duty of parents.) A parent is not legally permitted, by being unemployed or underemployed, to avoid his/her financial support obligations to a child and/or burden the other parent with his/her share of financial responsibility. See Utah Code § 78B-12-203 entitled “Determination of gross income — Imputed income.”  

Subsection (8) provides that one, income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held in a judicial or administrative proceeding and findings of fact as to the evidentiary basis for the imputation are made. If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:  

(i) employment opportunities;  

(ii) work history;  

(iii) occupation qualifications;  

(iv) educational attainment;  

(v) literacy;  

(vi) age;  

(vii) health;  

(viii) criminal record;  

(ix) other employment barriers and background factors; and  

(x) prevailing earnings and job availability for persons of similar backgrounds in the community.  

Subsection (8)(c) further provides, “If a parent has no recent work history or a parent’s occupation is unknown, that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.”  

Subsection (8)(d) further provides, “Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:  

(i) the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;  

(ii) a parent is physically or mentally unable to earn minimum wage;  

(iii) a parent is engaged in career or occupational training to establish basic job skills; or  

(iv) unusual emotional or physical needs of a child require the custodial parent’s presence in the home. If you are an underemployed or unemployed parent who believes you can gain the child support system, you are mistaken.  

So, in Utah if you you are an underemployed or unemployed parent who believes you can game the child support system, you are mistaken. If you are the other parent who is confronted with an underemployed or unemployed parent who is trying to game the child support system, know that the law is on your side, so long as you can prove that the other parent is underemployed or unemployed and needs to have a reasonable income imputed to him/her for the purpose of determining each parent’s financial child support obligations. 

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

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How does the legal system protect the visitation rights of non-custodial parents?

How? Not very well, generally. 

But before I elaborate, let’s ask and answer this question first: is the legal system designed to protect the visitation (“visitation” is also known as “parent-time”) rights of noncustodial parents? 

The answer to that question is, ostensibly: yes. But as I stated above, regardless of how well the legal system may be designed or may intend to protect the parent-time/visitation rights of noncustodial parents, designs and intentions are meaningless without proper enforcement. 

And just how well are the designed/intended protections of noncustodial parent visitation/parent-time administered and enforced? Terribly, for the most part. 

How so? Some jurisdictions make interfering with the noncustodial parent’s visitation/parent-time a crime. Criminal statutes, however, are of no protection to a noncustodial parent or two that noncustodial parent’s relationship with his/her child if the police won’t issue citations or make arrests for violating the criminal statute and if prosecutors won’t prosecute violations of the criminal statute. 

Virtually all jurisdictions have provisions in their law for punishing violations of visitation/parent-time orders in decrees of divorce and degrees of child custody and parent time. If, however, you are the wronged noncustodial parent (meaning that the custodial parent has flouted the court’s orders and denied/interfered with visitation/parent-time), yet the court does not hold the offending parent accountable by holding him/her in contempt of court and sanctioning him/her for the contemptuous act(s), then contempt of court is not a deterrent. 

Many jurisdictions provide for a parent who has been denied court ordered visitation/parent-time to receive what is known as compensatory or “make-up” time with the children. And that’s sensible. If the other parent denies you a weekend or a holiday with your children, then the court has the power to award you a “make-up” weekend or holiday. Again, however, such concepts and provisions in the law are meaningless when courts don’t enforce them. And many courts won’t. 

Why won’t courts get tough on custodial parents who interfere with and/or deny noncustodial parents there visitation/parent-time? Two main reasons. One, some courts believe that because it’s hard enough on a child to be denied time with one parent, taking time away from the offending parent so that the parent who was denied visitation/parent-time can spend time with the child simply “solves” one problem (denial of time with one parent) by causing another (denial of time with the other parent). Two, some courts just don’t care enough to enforce the laws on the books, and the cost of trying to hold these disobedient judges accountable is usually far too expensive and far too risky (you don’t want to antagonize the judge). 

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

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