Tag: parenting plan

What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | | 801-466-9277

*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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What is one thing you wish you would have added in your divorce parenting plan?

Here are some provisions that I have seen divorce litigants who did not include them in their divorce settlement agreements wish were included: 

  • a “loser pays” clause for 1) when a party takes action in court to enforce the provisions of the decree of divorce against the noncompliant party and/or 2) when a party files frivolous motions with the court that cost the other party needlessly wasted money on attorneys and lost time from work; 
  •  a “vexatious litigator/frivolous litigator” clause that requires your vindictive, malicious ex-spouse who is a vexatious litigator/frivolous litigator to post a bond in advance of filing any motions or petitions in court, so that your attorney’s fees and court costs are covered in the event your ex engages in vexatious/frivolous litigation against you;
  • a “right of first refusal” clause that provides for a parent to have the first right to provide childcare for the children when the parent who would otherwise be scheduled to have the children in his/her custody cannot provide personal care and supervision for the children. Usually, this right of first refusal (sometimes abbreviates as “ROFR”) applies only if the parent who would otherwise be scheduled to have the children in his/her custody cannot provide personal care and supervision for the children for a period of 3 (sometimes 4) hours or more. ROFR wouldn’t apply if a parent hires a sitter for an hour while a parent runs to the store, for example;
  • provisions for which of various child-related expenses not covered by child support will be shared between the parties, such as school expenses, athletic, and club (like Boy Scouts or Girl Scouts or 4H, etc.) expenses;
  • a provision authorizing any peace officer to enforce a court-ordered child custody and/or parent-time (visitation) schedule; and
  • a provision for allocating the right to claim the child(ren) for income tax purposes. 

There are others that may be of help to you and your family as well, but these that I’ve outlined are some of the best, in my experience.   

Utah Family Law, LC | | 801-466-9277

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Child Custody: what does it mean in divorce, and what factors determine who gets child custody?

One of the biggest worries (perhaps the biggest) for a parent going through divorce is the question of child custody.

A common misperception is that “child custody” means simply who your children will live with after you and your ex-spouse have divorced. “Child custody” has multiple meanings, however: legal and physical custody.

Legal custody.

Legal custody is the rights, responsibilities and authority of a parent to make decisions for the child(ren). This includes decisions regarding school and extra-curricular involvement, religious or moral upbringing and health and general welfare decisions for the child(ren). Legal custody can be “joint” or “sole,” meaning that divorced parents can exercise legal custody jointly or legal custody can be awarded to just one of the two parents to exercise. Joint legal custody is the most commonly awarded custody arrangement. Unless it can be proven that a parent is unfit to be entrusted with joint legal custody, the presumption in Utah law is that the parents will be awarded joint legal custody of their children.

Under a joint legal custody arrangement, both parents have equal rights to make decisions regarding their child(ren).

Physical custody.

Physical custody is the determination of where the children reside physically following a divorce. As with legal custody, physical custody may be “joint” or “sole” or, if there are more than two children, the court can “split” physical custody between both parents, with some children residing with one parent, and some children residing with the other.

Even under a “sole physical custody” arrangement, the other parent (who is known as the “non-custodial parent” will still be given “parent-time”[1] (what was formerly known as “visitation”) with the children, unless the noncustodial parent is found to be unfit to exercise parent-time.

If a parent spends 110 overnights or less with the children each year, he/she is a “noncustodial” parent. If a parent spends 111 or more overnights with the child(ren), then that is considered by Utah law to be joint physical custody. So take note: while the court can award the parents equal periods of physical custody, joint physical custody does not require that the parents have equal periods of physical custody.

Under a “joint physical custody” arrangement, parent-time will be split between the two parents and their homes.

If parents do not agree upon matters of the legal custody, physical custody, and parent-time awards, the judge will decide these issues for them after holding a trial.

The court will take into account many factors before making its legal custody, physical custody, and parent-time orders.

For a list of all of the factors a court considers in making its legal and physical custody awards, review these sections from Title 30, Chapter 3 of the Utah Code:

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

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

Section 10.3. Terms of joint legal or physical custody order.

If either party is a military service-member, the court must consider additional factors for servicemembers: see Utah Code Section 78B-20-306 through 309:

Section 306. Grant of caretaking or decision-making authority to nonparent.

Section 307. Grant of limited contact.

Section 308. Nature of authority created by temporary custody order.

Section 309. Content of temporary custody order.

If the court awards joint legal and/or joint physical custody, it must adopt what is known as a “parenting plan”. Without a parenting plan, joint legal and/or joint physical custody cannot be awarded.

Parenting Plan

Utah law requires that a parent who wants joint legal and/or joint physical custody must file a proposed parenting plan. A proposed parenting plan (whether merely for joint legal custody or joint physical custody, or for an award of both joint legal and joint physical custody) must include the following provisions:

Section 10.7. Parenting plan — Definitions.

Section 10.8. Parenting plan — Filing — Modifications.

Section 10.9. Parenting plan — Objectives — Required provisions — Dispute resolution — Education plan.

Section 10.10. Parenting plan — Domestic violence.

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

[1] For Utah Code sections that deal with parent-time, see:

Section 32. Parent-time — Intent — Policy — Definitions.

Section 33. Advisory guidelines.

Section 34. Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

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

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

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

Section 36. Special circumstances.

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