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Case Highlights from Miller Family Law:

  1. Obtained sole custody arrangement for father during modification proceedings.
  2. Obtained favorable settlement agreement from insurance company for lost business opportunities due to car accident.
  3. Defeated a request for protective order against our client, an out-of-state defendant, where petition raised decades old claims of disputed past abuse and successfully argued petitioner did not satisfy the intent of the statute by failing to show a reasonable fear of abuse.
  4. Increased property settlement for our client by 80% through negotiations with opposing counsel after multiple attorneys refused to accept our client's case.
  5. Successfully defended against a temporary restraining order alleging drug abuse and neglect of an infant where evidence of a failed drug test and warrant for arrest against our client was presented.  Argued that such evidence does not support a showing of abuse or neglect of our client's infant.  The restraining order was denied.
  6. Successfully obtained a protective order and supervised parent-time (visitation) to protect our client's child against neglect of his father during his parent-time.
  7. Assisted client in successfully recalling criminal warrants.
  8. Successfully represented father in mediation and settlement of paternity rights, obtaining favorable custody, support, right of first refusal and decision making orders.

Blog Posts

Child Custody in Utah: Joint Custody Factors

There is probably no more stressful aspect of divorce than child custody.  Every parent wants their child to be happy, protected, and provided for.  While there are circumstances when one parent is clearly less fit than the other, more often than not trial judges are faced with deciding child custody between one parent who is "good" and one who is "better."  How do child custody lawyers prove that their client is the better option?  

Best Interest of the Child

The paramount concern for the court is the best interest of the child.  The Utah State Legislature has enumerated ten (10) factors the courts must consider when analyzing the best interest children in custody cases.  See Utah Code Ann. § 30-3-10.2.  However, “[u]nlike support and alimony determinations, ... there is no checklist of custody factors that can govern custody determinations in all cases."  Risher v. Emerson, 2017 UT App 216, ¶ 7.  Therefore, trial judges are given broad discretion in balancing, weighing, and ultimately determining permanent physical custody of a minor child (or children).

To help trial judges understand what physical custody arrangement is in the best interest of the child, it is helpful for child custody attorneys to group and present the statutory factors in two categories: (1) the child's feelings or needs and (2) the parents' character and capacity to function as parents.  (See Rule 4-903 of the Utah Code of Judicial Administration for more detailed description of these categories).  

While each case may have its own unique facts, past Utah case law on child custody issues can help lawyers identify which factors are "critically important" and which factors are merely "possibly relevant" in their particular case.

Weighing Child Custody Factors

In the 1999 child custody case Hudema v. Carpenter, 1999 UT 290, the court stated, "[g]enerally, it is within the trial court's discretion to determine, based on the facts before it..., where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight."  See Hudema, ¶ 26.  

The Court in Hudema further explained: "The importance of the myriad of factors used in determining a child's best interests ranges from the possibly relevant to the critically important."

At the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement (i.e., which parent has been the primary caregiver) .  Id. ¶ 26.  On the other hand, we can reason that if a child is not thriving, not happy, and not well-adjusted, continuity of placement would not score high on a trial judges weighting of custody factors.

In contrast to continuity of placement, the Hudema court offered this analysis on another factor: religious compatibility.  "[O]nly when the parents' religiously based actions...negatively impact the child, as by compromising his health or safety, or by interfering with the stability and continuity in his life, or by diminishing the child's self image, should the religious compatibility factor be used to favor custody by one parent over the other."  Id. ¶ 29.

The court in Hudema went on to analyze the child's kinship with extended family (higher on the spectrum than religious compatibility) and the child's bond with each parent (at the significant end of the spectrum and potentially the most important factor).  Id. ¶ 36-37.

In Conclusion

The Hudema case demonstrates how a trial court could analyze the custody factors in a given case.  To be successful, child custody lawyers must spend enough time before trial gathering and analyzing supporting evidence on each child custody factor as they relate to the facts of their case.  This evidence can then be presented to the trial court to persuade it to use its discretion in weighing and balancing the custody factors to find that the lawyer's client is the "better" parent and to award physical custody to them.