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Child Custody and Parent-Time

Introduction

The page explains how custody a minor child works. Custody means power to care for and make decisions for someone else.

In Utah, custody may be a separate case or part of a case for divorce, separate maintenance, temporary separation, annulment, adoption, neglect and dependency, or termination of parental rights. Depending on the type of case, a custody order can come from a district court or a juvenile court.

Utah's divorce laws control how custody works, even if the parties were never married. Most orders award custody to one or both parents of the minor child. However, a custody order may award custody to another adult, like a grandparent.

 

Types of child custody

There are two parts to custody: legal custody and physical custody.

  • Legal custody is about who has the right to make important decisions about the children.
  • Physical custody is about where the children live.

Utah recognizes several custody arrangements for minor children. These include:

Sole legal and sole physical

Either parent can be awarded sole custody of the children. This means the children live with one parent and that parent makes major decisions about the children's lives.

The non-custodial parent will usually have parent-time with the children. For more information, see the section on parent time.

Joint legal and joint physical

With this arrangement, the children live with both parents. Both parents make important decisions about their children. Joint custody works best when both parents communicate well together.

Joint legal custody means both parents work together to make decisions about major issues affecting the children. These issues may include what religion (if any) the children will be raised in, whether the children should receive medical treatment or undergo a major medical procedure, where the children will go to school, and permission to get a tattoo, get married, or join the military before age 18. Joint legal custody does not affect the children's residence.

Joint physical custody means the children live at least 111 nights a year in the home of each parent. Joint physical custody works best when both parents live in the same general area.

Joint legal and sole physical

In this arrangement, children live with one parent over 255 nights per year. The other parent has regular parent-time, but both parents make important decisions about their children.

Split custody

This arrangement means that each parent is awarded the sole physical custody of at least one of the children when there is more than one child. Legal custody of the children by the non-custodial parent may or may not be shared as ordered by the court.

 

Best interest factors

The court must order what is in the children's best interests when making custody and parent-time decisions. This is true even when parties agree.

Joint legal custody assumed to be in children's best interests

Joint legal custody is assumed to be in the children's best interests unless:

  • one or more of the children have special needs,
  • the parents live far apart,
  • there is domestic violence, neglect, physical abuse, or emotional abuse involving one of the children, a parent, or a household member of the parent, or
  • there is some other factor the court considers relevant.

A party can overcome this assumption. They must show that sole legal custody would be in the children's best interests.

There is not a similar assumption about joint physical custody.

General factors

The court examines many factors to determine the children's best interests. General factors are listed below but for a more complete list see Utah Code Section 81-9-204. Some might not be relevant in your case.

The court considers the parents':

  • moral and financial conduct
  • history and nature of their relationship with their children
  • ability and desire to care for the children,
  • willingness to allow frequent and continuous contact between the children and the other parent, but the court will consider a parent's protective actions if the parent is acting to protect the children from domestic violence, neglect, or abuse.

And considers the children's:

  • relationship with extended family members of other individuals who may significantly affect the child's best interests

The court also considers:

  • evidence of domestic violence, neglect, physical, sexual or emotional abuse involving the child, parent or a household member of the parent Utah Code 81-9-104
  • whether a parent intentionally exposed the child to pornography or other inappropriate sexual material
  • whether custody and parent-time would endanger the child's health, physical safety, or psychological safety
  • evidence of psychological maltreatment Utah Code 81-9-204(4)
  • the relative benefit of keeping siblings together
  • any other factor the court finds relevant.

Additionally, the court can consider the children's desires. However, their desires are not controlling. The court gives added weight to the desires of children who are at least 14 years old, but this is still only one factor.

When considering the factors the court:

  • does not give either parent a preference due to the parent's gender.
  • cannot treat a parent that lawfully uses medical cannabis any differently then parents who lawfully use other prescribed drugs. 
  • cannot treat a parent unfairly because the parent has a medical cannabis card or works at a place that legally grows, sells, or delivers medical cannabis.
  • cannot treat a parent unfairly because the parent agrees or disagrees with their child's beliefs about gender identity. This includes if the child says their gender identity is different than their biological sex at birth. It also includes if the child acts or expresses a gender identity that is different than their biological sex.

Factors for joint legal, joint physical, or both

If the court is considering joint legal custody, joint physical custody, or both, it will also consider these factors: whether joint legal custody or joint physical custody will benefit the children

  • the parents' ability to give first priority to the children's welfare and reach shared decisions in the children's best interest
  • co-parenting skills, including:
    • ability to appropriately communicate with the other parent;
    • ability to encourage the sharing of love and affection
  • the distance between the parents' homes
  • the parents' maturity and their willingness and ability to protect the child from conflict that may arise between the parents, and
  • the parents' ability to cooperate with each other and make decisions jointly.
  • See Utah Code Title 81, Chapter 9, Part 2 for a complete list of factors.

 

Parent-time

Parent-time, also known as "visitation," means the time the non-custodial parent spends with a child. When parents cannot agree on a parent-time schedule, state law provides for a minimum parent-time schedule:

The court can order any schedule that is appropriate for the children and the parents and in the children's best interests using the factors in Utah Code Section 81-9-207 and any other factors the court finds relevant. When one or both parents are servicemembers, or are thinking about joining the armed services, there are other considerations. See Utah Code Section 81-9-202.

 

Parenting plans

If the parents agree to any form of joint legal custody or joint physical custody, they must file a parenting plan. The court will have to determine that the joint custody arrangement is in the children's best interests. See the Parenting Plans web page for more information.

 

Relocation of a parent

A custody and parent-time order can include arrangements for when a parent relocates. If an order does not include arrangements for when a parent relocates, Utah law has a process for this. Either parent can request an order when one of the parents plans to move 150 miles or more from the residence of the other parent.

See the Relocation of a parent in divorce and custody cases web page for more information and forms.

 

Servicemembers

Military service members should review Utah Code Section 78B-20-102 et seq., Uniform Deployed Parents Custody, Parent-time, and Visitation Act.

Deployed parents should see the  Motion for Temporary Order Due to Deployment web page for more information.

 

Custody evaluation

The parties may request a custody evaluation prepared by a professional evaluator. The judge can order a custody evaluation even without a motion from a party. A custody evaluation may be expensive and the cost is often split between the parties. For more information, see Rule 4-903 and our pages on Custody Evaluation and Child Custody and Parent-Time.

 

Parent coordinator

Parents who need help resolving conflicts about parenting issues may ask the court to appoint a parent coordinator. The services of a parent coordinator may be ordered by the court with or without the agreement of both parties.

A parent coordinator is a mental health professional who has expertise in child development. They help parents resolve their differences by offering advice about the needs of the children and the workability of various parenting plans. Parents are not obligated to take the advice offered. The discussions and recommendations are confidential. For more information and forms, see on our webpage on Parent Coordinators.

 

Enforcing a custody or parent-time order

All parties must obey court orders. Custodial parents may not withhold parent-time, even if child support is not being paid. A parent may not withhold child support even if parent-time is being denied.

If a party does not obey a court order, the other party may file a motion asking the court to enforce the order. The enforcement order can include a judgment for money owed or extra parent-time. The court may also find a party in contempt of court and order the party to pay a fine or serve time in jail. For information and forms, see our webpage on Motion to Enforce Order.

 

Modifying a custody or parent-time order

Either party may petition the court to modify a custody order or a parent-time order. They must show there are substantial material changes in circumstances since the order was issued and if the modification would be in the best interests of the children. For information and forms, see our webpages on Modifying Custody and Modifying Parent-Time.

 

Registering a foreign order

Before an order from another state can be enforced or modified it first must be registered in Utah. For information and forms, see our webpage on Registering a Foreign Order.

 

Forms

 

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