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Child Custody - Utah Divorce Attorney

The fight over child custody in Utah can be one of the most hotly-contested issues in a divorce case. An award of custody can affect not just where a child will live, but can also affect who will have final decision-making authority on important issues such as school, medical care, religion, and more. Custody can also significantly affect child support obligations. Choosing the right Utah divorce attorney can be one of the most important decisions you will make. Contact us today to see how we can help you.

What factors will a Utah court consider for child custody?

In both the initial custody decision and a request for a change in custody, Utah courts are required to consider what will be in "the best interests of the child." Whereas some decisions in a divorce focus on what is fair or just for the divorcing spouses (such as alimony or property division), the question of child custody focuses squarely on the child. Utah courts are not supposed to give any preference to either parent based solely on the sex of the parent (mother or father). Instead, a wide range of other factors may be considered by the courts in determining what will be best for the child.

Some of the factors that a court may consider have been set out by the state legislature in Utah Code section 30-3-10. These include the following:

  • which parent appears to be more likely to act in the best interest of the child
  • which parent is more likely to encourage a healthy relationship with the noncustodial spouse (including encouraging frequent and continuing communication and contact with the noncustodial parent)
  • specific prior conduct of each parent (either negative or positive)
  • each parent's moral standards (often as demonstrated by prior conduct)
  • the quality, depth, and nature of the relationship between the child and each individual parent
  • prior instances where either parent has intentionally exposed the child to materials deemed "harmful to a minor" (e.g. pornography)
The legislature has set out a number of factors that are specifically tailored to questions of joint custody (legal or physical), but which may also be considered by the court in any child custody determination. These include the following:
 
  • how the physical, psychological, and emotional needs of the child will be served by either joint physical or joint legal custody
  • the willingness or ability of each parent to not only accept, but encourage a positive relationship between the other parent and the child
  • the ability of each parent to distinguish between their own interests and the child's interests, and to put the child's welfare first in making shared decisions
  • the role that each parent played prior to the divorce in raising the child
  • the physical proximity of each parent's residence to the other (how close the parents live to each other)
  • the ability and willingness of the parents to shield the child from the effects of conflicts that may arise between them
  • the parents' past history of cooperation in making joint decisions about the child, as well as their apparent present ability to do so
  • any past history of or potential for abuse (child abuse or spousal abuse) or kidnapping
The Utah Judicial Council has also created guidelines to be used in court-ordered custody evaluations, with the goal of creating more uniformity in such evaluations. In conducting a custody evaluation, the evaluator may consider various factors including the following:

  • the child's preference regarding custody (note that the older the child is, the more weight the child's preference may carry)
  • the nature and strength of the bond between the child and either or both of the parents
  • the depth and duration of each parent's desire for custody (duration can become particularly relevant when, for example, a parent who has never expressed interest in getting custody suddenly develops such an interest after learning how it may affect child support obligations)
  • any benefits that may come from keeping siblings together
  • any benefits that may be achieved by maintaining a previously established custody arrangement (assuming that the child appears to be doing well in that arrangement)
  • the moral character and emotional stability of each parent
  • each parent's ability to personally care for the child (as contrasted with a parent who might delegate child care duties to a grandparent, neighbor, or boy/girlfriend)
  • any substance abuse issues (including alcohol, illegal drugs, or prescription drug abuse) as such issues may significantly impair the parent's ability to function as a parent
  • if a parent has previously relinquished custody, any reasons for such relinquishment
  • religion, but only as it relates to religious compatibility between the parent and child (courts are not allowed to base custody determinations solely on whether a parent is religious or nonreligious or adheres to any particular religious practice or congregation)
  • financial conditions of each parent
  • any evidence of abuse or violence (prior or recent)
In addition to the factors listed above, a Utah court or custody evaluator can consider any other facts that are determined to be relevant. Because the court's goal is to find a custody resolution that will be be in the best interests of the child, the court is given a fair degree of discretion in considering the evidence and making a custody determination.

What is the process for determining child custody in Utah?

Some parents (divorced, separated, or otherwise) can reach an informal custody agreement without the intervention of lawyers, evaluators, mediators, or the court system. While such informal agreements may be convenient in some cases, they are generally not legally enforceable. In order to set up a custody arrangement that will carry the force of law, formal court action is required.

While formal court action is necessary, custody litigation does not have to be long or costly. If the parties can reach an agreement (whether on their own or with the assistance of an attorney), the agreement can be reduced to writing and filed with the court as a stipulated agreement. The court will still need to review the proposed custody order to ensure that it is in the best interests of the child. But generally such stipulated agreements are well-received by Utah courts.

If the parties cannot reach an agreement on custody issues, then a number of processes can be used to reach a resolution. Negotiations between the parties can be assisted and facilitated by an attorney. However, to avoid a conflict of interest, an attorney should only represent one party in such negotiations. The other party may be represented or unrepresented. In some cases, it is helpful to have a neutral party facilitate the negotiations process. Domestic mediation provides just such an opportunity. If mediation fails to result in an agreement between the parties, parents are entitled to have their custody disputes heard by the court.

Utah Divorce Attorney for Child Custody

Utah divorce and child custody cases involve some of the most important and personal legal issues you may face. Having the right attorney on your side can be critical to ensuring that your rights and your children's interests are protected. Contact us today to see how we can help you.

Sources: Utah Code section 30-3-10 and 30-3-10.2; Utah R. Jud. Admin. 4-903


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