Custody & Parent-time Attorneys in Ogden, Utah
There are two major branches of custody under Utah law: legal custody and physical custody.
Legal Custody:
Legal custody means, rights, privileges, duties, and powers of a parent that typically include decision making authority and the right to access information and records for your minor child. One parent may be awarded sole legal custody of the minor child, however under Utah law there is a presumption of joint legal custody.
Joint legal custody is the sharing of these rights and may include an award of exclusive authority to one parent to make specific decisions. If parties are awarded joint legal custody they will discuss all major decisions pertaining to the child’s health, religion, and education. Both parties are given equal access to the child’s health, education, and child care records.
The joint legal custody presumption may be overcome if there has been domestic violence in the home, the distance between the parties makes the exercise of joint legal custody impractical, the physical and mental needs of the minor child require it, or other relevant factors.
Physical Custody:
Physical custody is how many overnights the child is with each parent. In order to have joint physical custody, the child must be with each parent overnight for more than 30% (111 overnights) of the year, and both parents must contribute to the expenses of the child in addition to paying child support. When determining physical custody, the court uses multiple factors for determining what is in the best interest of the minor child. For an initial divorce, this analysis is usually done twice. Once for a temporary order hearing and again at trial. Usually one parent’s residence will be designated as the primary residence for the child.
For a temporary order, the Commissioner primarily uses the past involvement of the parents with the child and the current logistics (including the distance between the parties’ residents, work schedules, and the need for daycare) of the parties to make a recommendation.
If parents are not able to reach a final resolution for physical custody, a custody evaluator is needed to provide an expert opinion to the trial judge to determine what is in the child’s best interest on a permanent basis. A custody evaluator’s recommendation will have an impact on the judge, but ultimately it is the judge’s decision that will determine custody and parent-time.
The prospect of diminished rights and privileges to your child are unimaginable. Let our experience guide you to put your best self forward and avoid the common pitfalls that often accompany a custody battle.
Custody Evaluation:
The purpose of the custody evaluation is to provide the court with information it can use to make decisions regarding custody and parent-time arrangements that are in the child’s best interest. A custody evaluator can be a licensed clinical social worker, licensed psychologist, licensed physician who is board certified in psychiatry, or a licensed marriage and family therapist.
An evaluator is appointed when parents cannot reach a decision regarding custody of the minor child. A custody evaluation averages six to nine months and costs anywhere from $3,000 to $15,000 depending on if the evaluator is called as a witness at trial. If the parties are not otherwise able to agree, the Commissioner will determine what percentage of the cost each of the parties will pay up front and reserve the final allocation of cost for trial.
It is important to have an experienced attorney who has gone through this process to help you with the various intake forms, meetings, and settlement conferences involved in the custody evaluation process.
Both parties first hear the custody evaluator’s recommendation at a 4-903 Settlement Conference. The term “4-903” comes from the Utah rule the governs custody evaluations and the factors they consider when making recommendations. The evaluator will be looking at the following factors when compiling a recommendation:
1. The developmental needs of the child (including, but not limited to, physical, emotional, educational, medical and any special needs), and the parent’s demonstrated understanding of, responsiveness to, and ability to meet, those needs.
2. The stated wishes and concerns of each child, taking into consideration the child’s cognitive ability and emotional maturity.
3. The relative benefit of keeping siblings together;
4. The relative strength of the child's bond with the prospective custodians, meaning the depth, quality and nature of the relationship between a prospective custodian and child;
5. Previous parenting arrangements where the child has been happy and well adjusted;
6. Factors relating to the prospective custodians' character and their capacity and willingness to function as parents, including:
a. Parenting skills
b. Co-parenting skills (including, but not limited to, the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent);
c. Moral character;
d. Emotional stability;
e. Duration and depth of desire for custody and parent-time;
f. Ability to provide personal rather than surrogate care;
g. Significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
h. Reasons for having relinquished custody or parent-time in the past;
i. Religious compatibility with the child;
j. The child's interaction and relationship with the child's step-parent(s), extended family members, and/or any other person who may significantly affect the child's best interest;
k. Financial responsibility;
l. Evidence of abuse of the subject child, another child, or spouse;
m. Any other factors deemed important by the evaluator, the parties, or the court.
After hearing the evaluator’s recommendation the parties try to reach a resolution at the 4-903 Settlement Conference through the mediation process. If the parties are not able to reach an agreement at mediation, a pre-trial conference is typically conducted to certify the issue of custody and parent-time for trial.
The custody evaluator will provide a written report of his or her recommendation prior to trial. Let our experience guide you to get the best evaluator appointed for your case and properly prepare you for the evaluation.
The preference of the child if over 14 years old;
The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
Any history of, or potential for child abuse, spouse abuse, or kidnapping; and
Any other relevant factors.
Parent-time:
Pursuant to Utah Code Ann. §30-3-32, absent evidence of real harm or substantiated potential harm to a child, it is in the best interest of a child to have frequent, meaningful, and continuing access to each parent and for the child to have both parents actively involved in parenting the child.
Parent-time is the actual time each parent spends with their child. A parent-time schedule should be developed on a case-by-case basis. Utah law has three separate statues that provide parent-time schedules for non-custodial parents, however those recommended schedules do not always meet your needs or the needs of your child. As part of your consultation with our firm we will review all possible parent-time options suited to your needs. Our firm has extensive experience in and out of the courtroom arguing and negotiating for the best possible parent-time arrangements.