There are two parts to custody: physical custody and legal custody. Physical custody means where the children live. Legal custody means which parent has the right to make important decisions about the children (such as medical care, education, and religion). Generally, joint legal custody is presumed to be in the child's best interest unless there is domestic violence, the child has special needs, the parents live far apart, or there is some other factor the court considers relevant.
If the parents cannot agree on the custody arrangement of their children, the court must make the decision based upon the best interest of the child. The general factors for determining the best interests of a child are:
- the parents' conduct and moral standards;
- which parent is more likely to act in the child's best interest;
- which parent is more likely to allow the child frequent and continuing contact with the other parent;
- the depth, quality, and nature of the relationship between a parent and child.
Additionally, the court must consider the following:
- whether the physical, psychological, and emotional needs, and development of the child will benefit from joint legal or physical 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, including the sharing of love, affection and contact 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 or physical custody;
- the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
- the past and present ability of the parents to cooperate with each other and make decisions jointly;
- any history of, or potential for, child abuse, spouse abuse, or kidnaping; and
- any other factors the court finds relevant.
To say that a custody dispute can be a very difficult time for parents and the children involved goes without saying. While it is best for parents to come to an agreement on custody, that is not always possible. Court commissioners and judges also do not always see things the way parents do, and many parents feel their children are being hurt by forced court orders that are not in their children's best interests. We understand how important your children are to you and are committed to ensuring their best interests are met in alignment with your interests.
Parent-time is generally awarded to the noncustodial parent and is also referred to as visitation. This is the time the noncustodial parent spends with a child. When parents cannot agree on a parent time schedule, state law provides for a minimum parent-time schedules based upon the child's age:
- Children 5-18 (Utah Code Section 30-3-35)
- Children under 5 (Utah Code Section 30-3-35.5)
- Children 5-18 (optional schedule) (Utah Code Section 30-3-35.1)
The court can order any schedule that is appropriate for the children and the parents and in the children's best interests. The court generally orders siblings who are of varying ages to be on the same parent-time schedule.