Custody and Parent-time

REACHING AGREEMENT ON CHILD CUSTODY AND PARENT-TIME

by

Chris K. Wehl, Ph.D.

This is a brief introduction to Utah Statutes on child custody. The intent here is to provide mediating parties with a general understanding of the considerations that would guide a court's determination of this issue. Much of this information comes from the Utah State Code, Chapter 30. Please note that the mediator is unable to provide individual legal advice and will not predict specifically how a court would determine particular rights between divorcing or separating parties. As a mediating party, you are encouraged and advised to seek legal information and individual advice from the attorney and other desired experts of your choice.

1. Physical Custody refers to how parents will share the children's time between them during the week, and for all holiday and vacation periods.

2. Legal Custody refers to how parents will:

a. make the major life decisions affecting their children regarding residence, education, religion, medical/dental/vision/mental health/orthodontia care, and the miscellaneous aspects of parenting which include extracurricular activities (sports, music, scouts) and also the children's manner of dress, haircuts, and so on; and

b. share responsibility for the children (getting them to appointments, paying for property damage caused by the children, etc.).

Legal custody language usually includes the additional language specifying who will make the major life decisions and have the responsibility for the children. This may be handled in several ways:

1. Sole Legal Custody is when one parent makes the major life decisions affecting the children.

2. Joint Legal Custody is when both parents, together, make the major life decisions affecting the children.

3. Split Legal Custody is when each parent has sole legal custody of at least one of the children. Obviously this can only happen in families where there is more than one child.

4. It is also possible to describe legal custody in terms of a process parents will utilize to make decisions. Some examples are: parents may discuss the issue together and consult with an outside expert if they cannot agree, enter into mediation or arbitration, alternate having the final decision when they cannot agree, or one parent can have the final decision after a good-faith attempt at reaching agreement with the other parent.

5. Major life decisions affecting the children can also be shared by area. For example, perhaps the parents will make the major life decisions regarding education, religion, and medical care together, but only one of them shall decide where the child shall live.

This last concept, where the child shall live, brings us to a discussion of Primary Residence which refers to the child's legal address to which school and medical records are sent. Primary Residence also refers to the parent with whom the child primarily lives, and, perhaps, with whom the child may move if that parent is relocated for good cause, and the move is in the child's best interests. The fear of one parent moving with the child, is one of the biggest fears parents bring to mediation. The discussion of how to handle future moves is an important one, and one which is best left until the possibility is a reality and all the details are known. Parents in mediation often agree to give each other 60 days' advance notice of any move from the vicinity so they have time to renegotiate their parenting arrangements to consider the best interests of their child.

Awarding custody

Every divorce agreement involving parties with minor children must include assignment of custody of the children. In the absence of an agreement between the divorcing parties, the court will determine custody considering "the best interests of the child and the past conduct and demonstrated moral standards of each of the parties." In awarding custody, the court shall consider

• which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the non-custodial parent as the court finds appropriate.
• Current and past interest of each parent in having custody of the child.

Joint Legal Custody

This refers to the sharing of the rights, privileges, duties and powers of a parent by both parties. It can include an award of exclusive authority to one parent to make specific decisions. It does not affect the physical custody of the child, and does not require equal or nearly equal period of physical custody by each parent. It does not preclude designation of a primary residence for the child.

The court will only order joint legal custody if it is in the best interest of the child and (1) both parents agree to joint legal custody, or (2) both parents appear capable of implementing joint legal custody. The court will consider:

• whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody;
• 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;
• whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent;
• whether both parents participated in raising the child before the divorce;
• the geographical proximity of the homes of the parents;
• 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;
• the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; and
• any other factors the court finds relevant.

The court may order that where 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 through litigation, except in emergency situations requiring ex parte orders to protect the child.

Parent-time

Utah statute intends to promote parent-time at a level consistent with all parties’ interests. In the absence of evidence of harm or potential harm to the child it is assumed that it is in the best interest of the child to have "frequent, meaningful, and continuing access to each parent" and to have both parent actively involve in parenting the child. The statute states that parent-time schedules mutually agreed upon by both parents are preferable to an imposed schedule, and that the schedule should be used to maximize the continuity and stability of the child’s life. If court imposed, the schedule cannot be less than the standard parent-time schedule shown below.