If you're splitting up with your child's other parent, you'll have to deal with the question of where the child will primarily live, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Utah law deals with these issues.
There are two types of custody in Utah: "legal custody" and "physical custody." With each type, parents may have "joint custody," or one parent may have "sole custody."
Legal custody concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. A parent with sole legal custody may make those decisions unilaterally, without getting the other parent's consent. When parents have joint legal custody, they both have a right to be involved in the decision-making process.
Joint legal custody is by far the preferred outcome in custody cases, because it enhances the active participation of both parents in the child's life. In Utah, the law presumes that joint legal custody best serves the child's needs. But a parent may overcome that presumption with evidence that convinces the judge that joint legal custody wouldn't be in the child's best interests—such as when it would be impractical because the parents live far apart or there's a history of domestic violence. (Utah Code § 30-3-10(3), (4)(b) (2023).)
Although parents with joint legal custody share decision-making, the judge may still give one of the parents the authority to make specific decisions in certain areas. (Utah Code § 30-3-10.1(2)(b) (2023).) For example, the judge might order that one parent will decide where and when a child attends religious services. As a general rule, the more specific the court order is regarding joint legal custody decision-making, the less chance there is for confusion or conflict.
Physical custody refers to where a child lives and which parent is responsible for the routine daily care and control of the child, such as bathing, disciplining, or preparing meals.
When a parent has sole physical custody, the child lives with that parent (the custodial parent), while the noncustodial parent will usually have visitation (also known as "parent-time" in Utah). We'll talk more about visitation, below.
Joint physical custody doesn't necessarily mean the parents have an equal amount of time with their child (a 50/50 split). Under Utah law, it means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the child's expenses in addition to paying child support. Even when the parents have joint physical custody, the judge may still identify one parent as the primary caretaker and one home as the child's primary residence. (Utah Code § 30-3-10.1(3) (2023).) You might see this when the parents live in different school districts, and the school the child will attend requires proof that the child primarily resides in that district.
As a practical matter, joint physical custody works best when the parents live close to each other. This tends to reduce problems, especially transportation issues that can arise when a child actively participates in sports or other after-school activities.
Unlike joint legal custody, there's no presumption in Utah law favoring joint or sole physical custody. (Utah Code § 30-3-10(8) (2023).) So judges don't necessarily have to order joint physical custody when they've ordered joint legal custody.
Parents always have the option of agreeing between themselves on how they'll handle child custody and visitation. But in order to have the agreement made part of a court order, they'll need to spell out the details in a written "parenting plan," sign it, and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests.
If the parents can't agree on custody and visitation, that doesn't preclude one or both of them from seeking a "shared parenting arrangement" (in which neither parent has both sole legal and physical custody. A parent may request any form of shared parenting by submitting a proposed parenting plan to the court. (Utah Code § 30-3-10.8(1) (2023).)
Note that parenting plans normally must contain a provision for the parents to engage in dispute resolution of issues that may arise in the future. Dispute resolution typically involves either counseling or mediation. (Utah Code § 30-3-10.9(3) (2023).)
When parents can't reach an agreement on custody or visitation, a judge will have to resolve the issue. Whenever a judge is making a custody decision, the priority has to be the best interests of the child. Judges may also consider all relevant circumstances, including:
(Utah Code § 30-3-10(2) (2023).)
No. Utah law specifically states that there is no custody preference for either parent based on gender. (Utah Code § 30-3-10(7) (2023).)
Along with the other factors listed above, judges may consider the child's wishes and concerns about custody, after taking into account the child's cognitive ability and emotional maturity. Judges don't have to follow what children want in terms of custody, but they should give "added weight" to the wishes of teenagers who are at least 14 years old.
When judges decide to interview children about their custody wishes, they should do so in chambers. Judges don't need to get the parents' consent for an interview if that's the only way to learn what the children want.
Normally, parents may not require their child to testify in a custody case, unless the judge decides that it's necessary under the circumstances and that there's no other reasonable way to hear the child's wishes. (Utah Code § 30-3-10(2)(p), (5) (2023).)
Judges may decide to order a custody evaluation (on their own or after a request from a parent) as a way to get additional input about a child's custody preferences and what would be in the child's best interests. Custody evaluators are mental health professionals licensed by the Utah Department of Occupational and Professional Licensing. Their job is to gather information relating to the factors affecting custody and prepare an evaluation report for the court. (Utah Code of Judicial Administration, Rule 4-903 (2023).)
Utah law sets out the following principles favoring meaningful parent-time for both of a child's parents. Unless there's evidence that it would be harmful for the child,
(Utah Code § 30-3-32(2)(b) (2023).)
The courts much prefer that parents work out a visitation schedule between themselves. That way, they can make sure that the parent-time accommodates both the child's needs and their own schedules. Usually, a judge will sign off on the parent-time agreement as long as it appears to be in the child's best interests.
If the parents can't reach an agreement on a parent-time schedule, a judge will have to decide for them, based on what's best for the child. With that in mind, Utah law includes detailed standard schedules that provide a basic minimum amount of time that noncustodial parents should be spending with their children. Whether judges use these standard schedules or come up with their own schedule for a particular case, they need to spell out their reasons in the order.
The two most common visitation schedules are:
A typical visitation schedule encompasses one evening per week (during the school year) and alternate overnight weekends. There are also provisions for holidays (with the parents alternating years), as well as summer vacations and school breaks. The schedules even address pick-up and drop-off times, as well as "virtual parent-time" (such as through telephone conversations, emails, instant messaging, and video conferencing).
Although it's less common, the law also provides an equal parent-time schedule, which judges may order if each parent has been actively involved in the child's life and can effectively facilitate the schedule.
In addition to these schedules, the law sets out detailed advisory guidelines for judges to consider when they're deciding on parent-time schedules in the children's best interests. (Utah Code §§ 30-3-33, 30-3-34, 30-3-35, 30-3-35.2, 30-3-35.5 (2023).)
When there's evidence that a child would be subject to physical or emotional harm or child abuse from the noncustodial parent if left unsupervised with that parent, the judge may order supervised visitation and appoint someone to oversee the parent-time sessions.
When judges appoint a supervisor, Utah law requires them to give preference to someone the parents suggest, including a relative. The judge will approve the parents' choice as long as that person is willing and is capable of protecting the child from harm. But if the judge isn't able to authorize anyone the parents have suggested, the noncustodial parent may have to seek the services of a professional individual or agency to oversee the visitation. Some of these services may be provided by the county or state.
When judges order supervised visitation, they must provide specific goals and expectations for the noncustodial parents to accomplish before they can get unsupervised visitation. For example, the judge may order an addicted parent to complete a rehabilitation program. (Utah Code § 30-3-34.5 (2023).)
Utah, like almost all other states, has a set of laws governing when the state's courts have jurisdiction (legal authority) to issue orders affecting child custody. Under these laws, known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Utah courts generally have jurisdiction to issue custody orders regarding children whose "home state" is Utah— meaning they've lived in the state with a parent (or someone acting as a parent) for at least six months just before the beginning of the divorce or other custody case. (For a child less than six months old, the state where the child lived from birth has jurisdiction.) (Utah Code §§ 78B-13-102(7) and 78B-13-201(1)(a) (2023).)
The rules in UCCJEA are complicated, and there are many exceptions to the basic rules. In general, once courts in Utah (or any other state that has enacted the UCCJEA) have issued custody orders, they continue to have exclusive jurisdiction over that child's custody, unless certain circumstances have changed—such as when both parents and the child no longer live in the state. That means that a Utah judge may not modify (change) a custody order from another state unless the strict requirements for changing jurisdiction have been met. (Utah Code § 78B-13-203 (2023).)
If you have any doubts or questions about a Utah court's jurisdiction over your child, you should speak with an experienced family law attorney for advice.
The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to the parenting plan. For instance, a teenager may have a good reason to want to live with the noncustodial parent, such as intractable conflicts with the custodial parent's new spouse and children.
But you aren't allowed to simply change the parenting schedule on your own, without court approval. If you want to make changes to a current custody or visitation order in Utah, you must file a motion (written legal request) with the court, seeking a modification. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's approval.
Without an agreement, a judge will have to decide whether to grant the modification. In order to succeed with a request to change an existing custody order, you must prove that there's been a "material and substantial change in circumstances" since the most recent custody order was issued, and that the proposed modification would be in the child's best interests. (Utah Code § 30-3-10.4 (2023).)
According to the Utah State Courts website, examples of a material and substantial change of circumstances include when:
There's something unusual about the language in the Utah modification law: It seems to apply only to custody orders that established joint legal custody or joint physical custody. Does that mean that in a case where one parent was awarded sole legal and physical custody, the other parent can never seek a custody change? Not according to Utah courts, which have applied the modification standard in the law to cases involving sole custody as well as joint custody. (Doyle v. Doyle, 258 P.3d 553 (Utah 2011).)
Be aware that the standard for modifying a visitation (parent-time) order is somewhat less stringent than changing a custody order. Here, the parent seeking the modification only has to show that there's been some showing of a change in circumstances, not necessarily a material and substantial change. (Erickson v. Erickson, 437 P.3d 370 (Utah Ct. App. 2018).) For example, a noncustodial parent might seek a modification of the visitation schedule because that parent's work schedule has changed.
A parent's relocation might qualify as a change of circumstances that could warrant a modification of a custody or visitation order.
As a practical matter, a relocation that's relatively close to the moving parent's current residence isn't likely to warrant a change in custody or visitation. It could be hard for the other parent to show how a child would suffer from a relocation to the other side of the city or a nearby town, especially when the moving parent has sole physical custody. Still, that argument might work in some situations. For instance, a relatively short move that requires a change in schools might be harmful for a special-needs child who couldn't handle the disruption and can't get needed services at the other school.
Most relocation problems arise when a parent plans to move a substantial distance away. When a parent plans to move at least 150 miles away from the other parent's home, Utah law requires the moving parent to give the other parent at least 60 days' advance notice. A judge will then hold a hearing to review the situation.
If the judge decides that it's not in the child's best interests to move with the custodial parent, the judge may order a change of custody. Otherwise, the judge will decide on any appropriate changes to the parent-time schedule, as well as allocating the transportation costs needed for visitation. Among other relevant factors, the judge may consider the parent's reasons for the move. Utahs relocation law details certain minimum requirements and restrictions on parent-time schedules after a parent's move. (Utah Code § 30-3-37 (2023).)
If a parent isn't following the existing custody or visitation order, and the parents haven't been able to resolve the issue through dispute resolution, there may be no alternative but to go back to court and file a motion to enforce the existing order.
These motions often include requests for the judge to:
If the custodial parent has been withholding visitation, the other parent may ask the court for additional parent-time to compensate for the lost time.
Be aware that custodial parents aren't allowed to withhold visitation even if the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because visitation is being denied.
If you run into a situation where the noncustodial parent is refusing to return the child, the court has emergency procedures to assist you.
Either parent's interference with custody or visitation may also constitute a violation of Utah's criminal code, which could result in fines or even imprisonment, depending on the severity of the offense. (Utah Code § 76-5-303 (2023).)
Custody and visitation are obviously very serious issues. Because most lay people are unfamiliar with Utah's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. But if that's simply not possible, it may well be in your best interest to at least speak with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.