Tag: noncustodial parent.

Can a non-custodial parent claim the child tax credit?

Yes, and the IRS has provided this summary (among other publications) to show non-custodial parents how: 

Here is an excerpt from that IRS publication: 

Claiming Your Child as a Dependent 

Generally, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child (for the purposes of  claiming a dependency exemption and the child tax credit, but not for the earned income credit) of the noncustodial parent if all four of the following statements are true: 

    1. The parents:
      • are divorced or legally separated under a decree of divorce or separate maintenance,
      • are separated under a written separation agreement, or
      • lived apart at all times during the last 6 months of the year, whether or not they are or were married.
    2. The child received over half of his or her support for the year from the parents.
    3. The child is in the custody of one or both parents for more than half of the year.
    4. The noncustodial parent attaches a Form 8332, or similar statement containing the same information required by the form, to his or her return. The form must be signed by the custodial parent. (See special rules in Publication 17 for a pre-1985 or post-1984 and pre-2009 divorce decree or separation agreement.)

See Publication 17 for additional rules for claiming an exemption for a dependent. 

Additionally, you can call the IRS for assistance at 1-800-829-1040 

Here is the link to IRS Form 8332: 

Form 8332 (Rev. October 2018) ( 

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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In our society what shows that we value fathers as parents?

In our society what shows that we value fathers as parents?

When it comes to child custody awards (i.e., the award of legal and/or physical custody)? Society values fathers far too little when it comes to child custody awards.

I remember as a child going camping and discovering a crane fly in the tent. It didn’t matter how many times I was told the crane fly was harmless, I was terrified of it. Even matter when the dragonfly flew away, it didn’t matter; I lived in constant fear that a crane fly would bite or sting me. I was miserable the entire trip because I was convinced of something false. When it comes to child custody awards, fathers are the proverbial crane flies.

It is far too difficult in most parts of the United States (and other parts of the world, for that matter) for a loving, engaged father—who is by every reasonable standard fit to exercise both legal and physical custody of his children—to obtain a joint equal physical custody award.

Fathers are treated as second-class parents in child custody disputes. They are presumed to be less capable, less dependable, less loving, less interested in caring for their children than mothers.

Such treatment of fathers is as destructive as it is irrational.

If a father is the primary or sole breadwinner in the family, that is a strike against him in the child custody award analysis. Court’s pay the perfunctory complement to a hard-working father, then turn around and tell him that because he works full time to care for his family, he’s unfit to exercise physical custody of his children even half the time. Granted, there are some jobs that make the exercise of joint equal physical custody impossible, but far too often court simply presume that because a father works full time he could possibly manage to exercise joint physical custody of his children effectively as well.

When a father literally begs the court simply to give him a chance to prove that he is “worthy” and capable of exercising joint equal custody of his children, I have yet to see a court grant that request. Courts deny such requests by claiming (without a scintilla of evidence, let alone verifiable proof) that if joint equal custody is so much as implemented on a brief, experimental basis and fails, it would cause children irreparable damage. With respect, that is patent nonsense, empty words, a transparently lame excuse.

Consequently, fathers are held to a standard that is essentially impossible to satisfy when all they seek is the joint equal custody of their children for the purpose of ensuring the children are reared as much as possible by two loving, fit parents. The rate at which courts deny loving, fit fathers joint equal physical custody of their children is tragically high. Such denial breaks children’s hearts, to say nothing of the fathers’ broken hearts.

This miscarriage of justice is not going unnoticed, fortunately. More and more states are passing laws recognizing and combating the blatant discrimination against fathers that legal culture has

indulged for far too long. but that’s cold comfort for the fathers and children who are still being victimized.

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

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What is being a single parent without joint custody like in your country?

If a loving, able parent (i.e., a fit parent who lives in close enough proximity to the child(ren)’s other parent such that joint legal and physical custody does not work a genuine hardship on the children) would like nothing more than to be as involved in the rearing of his/her children as the other parent is denied that opportunity, then being a single parent who has not been awarded joint equal custody of his/her child(ren) is inexcusably, unjustifiably sad. Period. This is an absolutely true statement that is not subject to any qualification.

Clearly, if one of the parents abuses and/or neglect the child, if that parent does not care for that child in the temporal or emotional sense, then that is a parent who is clearly not worthy of a joint equal physical custody award, and that is a child who doesn’t deserve to be in the care and custody of such a parent half the time, perhaps none of the time.

But it is tragically absurd to deny a child the benefits of—nay, the right to—being reared equally by two equally fit and loving parents.

If you are a fit and loving parent who wants to be as much a parent to your children as you want the other parent to be, and if you believe the court endorses your position, odds are you are incorrect, if you and your children reside in the United States of America (and I’m sure this is true for most jurisdictions as well, although I have no experience in other jurisdictions and base my opinion upon the reading I do about other jurisdictions on the subject of child custody awards).

While it is true that joint equal custody is being awarded more than ever, it is still extraordinarily difficult for parents to get in most states. If anyone tells you otherwise, take his or her comments with a grain of salt. Don’t let your hopes for joint equal custody lull you into a sense of complacency.

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

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Child refuses to leave noncustodial parent’s house. What happens now?

I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.

If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.

If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.

So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?

First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

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

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Can I exercise overnights with children if I live in student housing?

Can a non-custodial parent exercise overnights with children while living in off-campus student housing?

As long as the school permits it and the living environment is sufficient to meet the child’s needs, yes. So you need to determine whether the school permits it (my guess is that it won’t) and that the living environment is sufficient to meet the child’s needs (which I would bet it does not, if it’s a single student dormitory or, worse, a shared dormitory). If you’re a single parent who wants to exercise physical custody of your child, you need your own place or you need to live with a family member in housing adequate for a child.

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

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Do I have to keep paying child support if our child doesn’t live with the other parent?


My daughter turns 18 in the middle of September.  I just recently learned that her mom moved away a couple of months ago leaving my daughter to live with her mother’s boyfriend, then my daughter just moved out of her mother’s boyfriends and into a friend’s house.

In the state of Utah, am I still obligated to pay child support after the child is no longer living with the custodial parent after she’s 18 but before she graduates?


You can seek a modification of the child support award if the child is no longer residing with the parent to whom you were ordered to pay child support.

You have two options for seeking a modification:

  • administratively through the Office of Recovery Services (ORS); or
  • you can file a petition to modify the child support order through the district court.

Consult an attorney to find out how to exercise either option and to determine what option may be best for you.

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

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If a single mother makes more annually than the father, would she have to pay child support even if she has custody?

In Utah, almost certainly not.

I cannot think of a scenario in which a parent (mother or father) has sole physical custody of the children and would have to pay any child support to the noncustodial parent. In that scenario it doesn’t matter if he/she earns more than the other parent; he/she will have no child support obligation to the noncustodial parent. It is possible, however (though not likely), that if the custodial parent earns more than enough to support the children on his/her own the court could order that the noncustodial has little to no child support obligation.

It gets more interesting if the parents are awarded joint physical custody. In Utah “joint physical custody” means that a parent who has the children no less than 110 overnights with the children is a joint physical custodian. Custody does not have to 50/50 for there to be joint custody awarded.

So I ran some calculations where the parent who has the child in his/her custody more nights than the other joint custodial parent grosses $10,000 per month and the other parent makes minimum wage (i.e., grosses $1,257 per month). This little hypothetical proves that, depending upon the division of overnights, a parent who makes more money than the other parent AND who has the children in his/her custody more than the other parent can, under Utah’s statutory child support guidelines, wind up being ordered to pay child support to the other parent.

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