John Vitela: Child Custody Rights

Utah Code Section 30-3-35 deals with child custody. If you are in the midst of a divorce, it’s important that you consult with an experienced Utah child custody attorney. The court will not automatically grant custody of your children to you.

Best Interests Of The Child Test

Beginning in the 1970s, custody statutes began to enumerate factors to guide a “best interests” determination, or to adopt presumptions that would all but dictate the outcome in certain types of cases. Typical factors range from parental age and health to earning capacity, ability to nurture, and living arrangements. Children of a certain age might get to voice an opinion, too.10 This does not eliminate judicial discretion, but it narrows the inquiry at least somewhat. At the same time, the maternal preference—formally recognized in some states, but informally lurking virtually everywhere—gave way to a gender-neutral standard in the 1970s.

The ban on sex discrimination in the 1970s made it difficult, if not impossible, for states to defend sex-based classifications. The maternal preference was held to be unconstitutional, in favoring women and penalizing men who might be equally good parents. As the Utah Supreme Court wrote in a 1986 opinion, the “tender years doctrine was perhaps useful in a society in which fathers traditionally worked outside the home and mothers did not,” but it was now “unnecessary and perpetuates outdated stereotypes.”

Legal Custody and Physical Custody

Under the law, custody has two distinct components. Legal custody gives a parent the legal authority to make decisions about a child’s upbringing. Physical custody is the right of a parent to maintain physical control of a child. The children of a divorced couple live with the parent who is awarded physical custody. An award of sole custody grants control of a child’s life to one parent. That parent’s home becomes the child’s legal residence, and the child becomes that parent’s legal responsibility. Divided custody is an arrangement allowing children to live with each parent for part of the year. The parent with whom the children are residing at any given time has legal custody. Split custody is an allocation of parental rights in which each parent is granted sole custody of some of the couple’s children. Joint custody theoretically grants both parents equal legal rights and responsibilities. A variety of residential options are possible under joint custody, including bird’s nest custody—an arrangement allowing the children to remain in the family home while the parents take turns moving in and out.

Sole Custody and Joint Custody

Custody awards traditionally were of only one type: one parent was awarded sole custody, and the other was perhaps awarded “visitation.” Sole custody basically meant decision-making power over all aspects of the child’s life, and physical responsibility for all aspects of a child’s care. But this arrangement often meant that relationships with the other parent were apt to deteriorate or disappear. With joint custody, parents can share “physical” or “residential” custody so that children go back and forth from house to house (or, in some cases, the parents go back and forth between the custodial house and another residence). Or they may just share “legal” custody, that is, both parents have a say in important decisions about education, religious training, and medical care. Joint custody is in many ways harder to establish and maintain than the traditional arrangement. Parents must have the capacity to make decisions together—even though, after all, they have recently gotten a divorce.

They must be able to afford two of everything—beds, clothes, toys, musical instruments, bikes— so that children do not feel they are living out of a suitcase. They must live close enough to each other so that the back-and-forth travel is manageable for children and parents. And the children themselves must be secure and stable enough to handle all the moving around. On the other hand, fathers with joint custodial rights are more likely to pay child support. Children clearly benefit in most cases through stronger ties with both parents. But divorcing families are not all alike; and legislatures eventually decided to give back to the judges some of their discretion in deciding where the children’s best interest lies. Courts may consider what the parents want, what they can do, what the children want (if they are old enough to have a say), the money situation, geographical issues, what will and what will not disrupt the children’s education and social lives, and so on.
Joint legal custody is less difficult; but there is still plenty of potential for trouble. If one parent thinks the child needs a private school, and the other prefers a public school, who decides? Disagreements often led to the divorce in the first place, so it is hardly surprising that they continue afterwards.

Utah Court Decisions On Child Custody

A child custody lawsuit is unlike any other. The judge has to decide on an unusual and difficult question. While most lawsuit rely heavily on the documentation of facts that are relevant to the case, a child custody lawsuit involves detailed subjective judgement on the caregiving competence of the parents. Prior cases cannot be the sole basis for deciding a child custody lawsuit. Each child custody lawsuit is different and they must be decided on a case to case basis. The judge has to consider the unique nature and circumstances of the husband, wife and the children. The judge also must consider the long term implications of the final custody award that will be passed while at the same considering the future (unpredictable) financial condition of the spouses and the developments needs of the children.

Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis.

A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive.

In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child.

There will be cases in which both parents present evidence that they have served equally as primary caretakers, and the child is emotionally attached to both. Then the judge must look to some other factor to break the tie. Or there may be evidence that the child is not emotionally attached to the primary caretaking parent but rather to the other parent. With very small children this is not usual, but it is possible in the case of a seriously emotionally detached parent. The primary parent preference simply means that a judge cannot be arbitrary and must look first to actual parenting.

Unlike divorce, child custody is not a legal event that can be negotiated or fought over and ultimately settled within a year or two. Legal custody lasts until the child reaches adulthood. Even if you have been granted custody, your spouse can later apply to the court to have the custody changed.

Courts impose custodial arrangements typically without regard to the age of the children and without reference to the available developmental research. Although custody orders theoretically can be modified at the request of a parent, this difficult option is rarely exercised and custody arrangements for the most part remain fixed no matter what the child’s age. Modification of custody orders requires significantly changed circumstances. The changing needs of the children alone are not considered changed circumstances for modification purposes.

Criteria For Custody

Most family court judges rely on some combination of the following criteria:

• The Parents’ Wishes – A court will almost always approve custody provisions that the divorcing couple have designed themselves. Parental agreements do not, however, deprive a family court of its power to act in the best interests of the child. Occasionally, courts use this power to alter or overrule a divorcing couple’s custody arrangements. Not surprisingly, a judge is unlikely to award custody to a parent who is not prepared for custodial responsibilities or whose stated desire for custody seems to be based on financial gain or personal satisfaction rather than a child’s interests.

• The Child’s Preference – A child’s wishes are given more or less weight, depending on the child’s age, education, and demonstrated maturity. In some states, a child’s custodial preference cannot be considered unless the child is at least twelve years old. In a few states, a child’s preference must be honored if the child is fourteen or older.

• Siblings – While courts overwhelmingly prefer to keep siblings together, circumstances frequently arise that warrant split-custody decisions. Siblings who constantly fight are often separated at the request of their parents. To honor children’s wishes, a father is sometimes awarded custody of an older son while his daughter continues to live with her mother.

• Environmental Stability – A child’s comfort in and satisfaction with home life, school, friends, and daily activities are significant considerations for most family court judges. Divorce itself is a traumatic disruption to children’s lives; courts are reluctant to approve custody requests that are likely to result in additional anxiety and destabilization. A child’s “established living pattern” in a familiar home, school, community, and religious institution should be altered only if there is a compelling need to do so.

• Violence or the Threat of Violence – No family court should knowingly allow a child to be exposed to domestic violence or the threat of violence. It doesn’t matter whether the violence, or the threat, is directed against the child or against someone else. A potential for violence based on past conduct is usually considered a valid indicator of future danger.

• Mental and Physical Health – If a child suffers from a mental or physical disability, the court must decide which parent can best meet the child’s special needs. The physical and mental health of the divorcing parents also comes under close scrutiny. Mental illnesses or physical impediments severe enough to endanger a child or debilitating enough to deprive a child of a parent’s care and companionship will almost always hamper a parent’s chances for custody in the eyes of the court. Evidence of rehabilitation can mitigate these concerns.

• Lifestyle – A family court evaluates a wide range of factors in its attempt to determine the effects (both positive and negative) that parents’ lifestyles are likely to have on the well-being of children. Courts do not generally look kindly on parents who engage in criminal activity, substance abuse, sexual misconduct, promiscuity, or homosexuality. Cohabitation is viewed harshly by some courts, barely noticed by others. The time that each parent’s lifestyle leaves available for child-rearing activities is also closely examined. A parent willing to revamp a daily work schedule to devote more time to child care has a clear advantage over a parent whose days and nights are consumed by the demands of a career. Because medical science has recently made clear the dangers of secondary smoke, a non‐ smoking parent is often preferable to a smoker.

• Everything Else – The majority of family court judges will consider any and all information presented to them in their attempts to determine what is—and what is not—in the best interests of a divorcing couple’s children.

An experienced Utah Child Custody attorney is your best friend in your child custody battle.

Utah Child Custody Lawyer Free Consultation

When you have a child custody battle in Utah, call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with paternity cases. Child Custody. Child Support. Back Child Support. Child Support Modification. Child Custody Modifications. Grandparent’s Rights. Divorces. And much more. We will help you.