Child Custody and Parenting Time
What is custody?
There are two elements of custody. The first is physical custody, which refers to the amount of time each parent is responsible for caring for their children. The second is legal custody, which refers to who makes the decisions regarding the children.
Physical custody can either be sole, or joint. Sole physical custody means one parent has the children most of the time, and the other parent has "parent-time." If the children are over the age of five, this parent-time is about 89 overnights per year, including every other weekend, every other holiday, four weeks in the summer and a mid-week evening. When the children are younger than five, parent-time starts with three visits per week for two hours each and gradually increases to the statutory minimum.
Joint physical custody is anything different from sole custody and is defined on a case-by-case basis via a "parenting plan." In one case, it might mean parents have their children for equal time, in another, it might just mean the mid-week evening extends overnight, or the every other weekend extends through Monday morning.
Legal custody can also be either sole, or joint. Sole legal custody means one parent makes all of the significant decisions regarding the children, such as decisions about where they go to school, what medical care they receive, if they are baptized into a particular religion, if they attend counseling, if they can move out of state, etc.
Joint legal custody is anything different from sole legal custody and is defined on a case-by-case basis via a "parenting plan." In one case, it might mean the parties are required to talk together to discuss the issues, but one of them has the final say. In another case, it may mean one party decides everything, except one or two specific issues, like religion or medical, on which the parties have to agree. In still another case, it might mean the parties try to reach agreements, and if they can't, they have to attend mediation or go to court to resolve the issue.
What is the difference between parent-time and visitation?
They are one and the same. The legislature simply realized it was insensitive to call a parent a “visitor,” when that parent was spending time with his or her own children.
Who decides what the custody arrangement should be?
Custody is ultimately decided either by the parties themselves, by agreement, or by the judge assigned to the case. If the parties cannot agree on how to divide the time while their case is pending, between separation and the actual divorce, there might also be a temporary custody order.
In a number of counties in Utah (Salt Lake, Utah, Tooele), there is also a special family court, with Commissioners appointed to deal with family law matters. If the Court in the county where the parents reside has such a system, then temporary custody is initially decided by a Commissioner. However, if a party objects to the Commissioner's ruling, a judge reviews it.
What factors are considered by a Court in making a custody decision?
A list of factors is outlined in the Utah Code and added to by cases which have interpreted that code, are considered by the Court in determining custody. The facts of each case dictate which of those factors are most relevant.
In general, the most important issue seems to be the status quo -- what is happening when the case gets in front of the Court. Judges and Commissioners put a great deal of weight on the decisions parents make, through their actions, in terms of how to share their children. They Court assumes that parents care deeply about their children, and try to do what is best for them. As a result, the decisions people make at the time of separation, before judges and lawyers get involved, are critical. Which parent naturally takes or keeps the children? Does the other parent immediately object and file a motion with the Court, or do they go along, implying they agree with the new arrangement?
Another critical issue is how the children are doing in the arrangement they're in. Understandably, if they're failing school, running away, or suffering unexplained injuries, the status quo may actually be a negative.
Additionally, the actual factors outlined by statute and case law are considered. Those include, but are not limited to, the following:
- Who has been the primary care taker of the children through the marriage;
- The respective mental and emotional stability of the parents;
- The parents' respective support systems, in terms of extended family, etc.;
- Any issues of drug or alcohol abuse;
- Any concerns about physical, verbal, or emotional abuse of the children;
- Past protective orders or criminal proceedings;
- The relative strength of the bond between the parents and their children;
- The preference of the children;
- Keeping siblings together;
- Religious compatibility between each parent and the children (although this one is treated with kid gloves);
- Exposure of the children to sexual matters, such as pornography or affairs (Caution: Be aware that the issue is whether or not the children have been impacted; the issue is not punishing a parent for such choices);
- Which parent can provide more personal care for the children, given their situation;
- Each parent's respective likelihood of supporting the children's relationship with the other parent;
- Any other factor the Court finds relevant.
How is evidence related to these factors introduced?
In Utah, many courts have a two-tier system for family law cases. Temporary hearings are held in front of a Commissioner, the final trial is held in front of a judge, who issues a “recommendation.” If either party objects to the recommendation, the matter is then scheduled for a second hearing before the Judge.
The procedures for hearings in front of a Commissioner versus a judge are very different.
For one thing, hearings in front of a Commissioner are held by “proffer,” which means the parties and their witnesses submit written affidavits to the Court to share their testimony. Their attorneys proffer, or verbally share, that information with the Court, and argue the case. Witnesses do not testify.
In contrast, at most hearings and trials in front of a judge, witnesses testify on the stand and are subject to cross-examination.
For all hearings, rather in front of a Commissioner or Judge, the parties also submit whatever evidence they feel is relevant, such as medical records, school records, letters, emails, pictures, etc.
A party can also request a custody evaluation. Wherein a trained therapist, social worker, child psychologist, or child psychiatrist evaluates the above factors and makes a recommendation to the Court regarding custody. This typically involves the evaluator meeting with both parents, alone and with the children; taking personality tests of the parents; talking to people with relevant information, like counselors, teachers, friends and family; and talking to the children about their feelings. (Note: Evaluators are trained to avoid making children feel they have to choose between their parents. Others should absolutely avoid engaging in such discussions!) An evaluator is able to take much more time than a judge on the case and their input weighs heavily into a Judge's decision. An evaluation costs between $3,000 and $5,000, in addition to the custody case itself, and how thorough of an evaluation one wants done.
Introduce the testimony of a custody evaluator regarding custody. If parties cannot reach an agreement regarding custody, and one feels strongly about the issue, they can request a custody evaluation. To be fair, there are some elements of Utah law governing parent-time (which used to be called visitation until the legislature felt it more accurate and more sensitive to stop referring to a parent as a “visitor” of his/her own children) that are equitable and work well for parents.
There are, however, more elements of Utah law governing parent-time that are inherently unfair and self-defeating. To ensure that your parent-time isn’t made as a knee-jerk reaction by the court, you need to know:
- not only the provisions of the Utah Code;
- but also how the code has been interpreted and construed by the Utah Supreme Court and Utah Court of Appeals; and
- what kind of evidence and expert testimony the courts find most persuasive.
What follows are some of the important points to keep in mind when child custody is at issue.
What is visitation, exactly?
Visitation is also known as parent-time. Visitation and parent-time are defined as “A noncustodial parents, period of access to a child.” Black’s Law Dictionary (8th ed. 2004)
Supervised visitation or parent-time is a situation, usually court-ordered, in which a parent may visit with the child or children only in the presence of some other individual because the parent exercising visitation or parent-time is known or believed to be prone to physical abuse, sexual abuse, violence, or poses some other danger to the children. Black’s Law Dictionary (8th ed. 2004)
If sole custody is awarded, the noncustodial parent is awarded “visitation” (what is currently called “parent-time” in the Utah Code) with the children. Utah has a “standard” or “default” schedule of parent-time for children over the age of five that allows weekly contact for three hours per week, alternating holidays, four weeks in the summer, and on alternating weekends, overnight.
What impact does a child’s age have on parent-time scheduling in Utah?
If the parents do not reach agreement on a parent-time schedule, the Utah Code contains a schedule that is considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.
The minimum parent-time schedule for children under 5 years of age is found at Utah Code § 30-3-35.5.
The minimum parent-time schedule for children 5 to 18 years of age is found at Utah Code § 30-3-35.
Remember: these statutory schedules are minimums, and only for situations where the parents cannot agree on a parent-time schedule of their own. They are not mandatory schedules in all cases.
Can I terminate visitation if I am not being paid the support I am owed?
No. The policy is that even if a parent is not paying support, it only hurts children worse to lose contact with the parent on top of losing the financial support.
If a parent fails to comply with a provision of a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected. (See Utah Code § 30-3-10.9(9)). To enforce compliance with a provision of the parenting plan or a child support order, one must file a motion to find the non-compliant parent in contempt of court and have him/her punished by the court in the form of financial sanctions, suspension of driver and professional licenses, and even jail.
Can I terminate paying child support if my ex-spouse is withholding parent-time or visitation from me?
No. The policy is that even if a parent withholds parent-time, it only hurts children worse to lose financial support for something that is not the fault of the children.
To enforce compliance with a provision of the parent-time schedule one can file a Motion to Enforce Parent-time and/or a motion to find the non-compliant parent in contempt of court and have him/her punished by the court in the form of financial sanctions, counseling, and jail sentences. You can also ask for an order from the court for make-up time to give you back the parent-time.