If you have kids and are getting divorce, realize that you might be in for a rough time.
People fight about money and kids in divorce, and they spend a lot more time and money fighting about kids than they spend fighting about money.
And this makes sense. Money’s a thing. Money’s ephemeral. Go make some more of it. Kids, on the other hand, kids are the most important thing in our lives. If you don’t think so, think about it this way: do you trade money for kids (hint: yes), or do you trade kids for money (hint: unless you want to go to federal prison, the answer is no)?
When there’s a divorce and an argument about custody and visitation, what facts does a court look at to make its decision?
General Custody and Visitation Factors
Utah law tells courts what they should look for when deciding child custody and visitation. Here’s the list:
- The past conduct and demonstrated moral standards of each of the parties.
- Which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent.
- The extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child.
- Whether the parent has intentionally exposed the child to pornography or material harmful to a minor.
- Domestic violence in the home or in the presence of the child.
- Special physical or mental needs of a parent or child, making joint legal custody unreasonable.
- Physical distance between the residences of the parents, making joint decision making impractical in certain circumstances.
- Whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody.
- The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest.
- Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent.
- Whether both parents participated in raising the child before the divorce.
- The geographical proximity of the homes of the parents.
- The preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody.
- The maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents.
- The past and present ability of the parents to cooperate with each other and make decisions jointly.
- Any history of, or potential for, child abuse, spouse abuse, or kidnaping.
- Any other factors the court finds relevant.
(In case you were wondering, these factors were taken from Utah Code, Sections 30-3-10 and 30-3-10.2.)
A court can use any of these to decide custody and visitation.
So, the question becomes this: out of all these factors which is the #1 most important factor a court looks at when deciding custody and visitation?
In our experience, the most important factor is this: who the primary parent was during the marriage.
Yes, I know that’s not one of the factors listed above, but it’s the most important.
The primary parent is the one who was with the kids most often.
If you’re not sure who the primary parent is, ask yourself these questions:
- Who stayed home with them most?
- Who put them to bed at night most often?
- Who took them to the doctor and the dentist usually?
- Who went to parent–teacher conferences most?
- Who did homework with them most of the time?
- Who stayed home with them when they were sick from school?
- Who do they usually go to when they have a problem?
If one parent’s name came up most of the time in your answers, there’s a good chance that parent will be considered the primary parent.
Does this Mean the Primary Parent Will Always Get Custody?
Just because something is the most important factor doesn’t mean it’s the only factor, and other factors can — and often do — outweigh the primary-parent factor.
For example: if the primary parent is also a drug user, he or she may well not receive custody.
Another example: if the primary parent abuses the children or commits domestic violence against his or her spouse, chances are good the other parent’s getting custody.
So, no, the primary parent won’t always get custody, but it’s easier to get custody when you have been the primary parent.