People fight about two things in divorce: kids and money. Oddly, people spend more money fighting about kids than they spend money fighting about money. Actually, that’s not entirely odd since kids are more important than money, but anyway.
The most contentious part about the fight over kids is figuring out physical and legal custody. Physical custody is where kids physically spend their time, and specifically where they spend their overnights. Physical custody is often called visitation or parent-time. The other aspect of custody is legal custody. Legal custody relates to who gets to make big life decisions for kids. It’s legal custody I want to talk about for a minute.
The first thing to understand about legal custody is it only applies to certain big aspects of kids’ lives –decisions regarding religion, schooling, medicine and healthcare, and extracurricular activities. So, if one parent were to have sole legal custody, that doesn’t mean that parent gets to make every decision imaginable and cut out the other parent. That’s not how parenting works, even among divorced parents. Divorce parents are still parents, and they have to work together for the good of their children.
In Utah joint legal custody is the norm, and there’s good reason for this. Human minds work better as a team, and we usually come up with better ideas when we work in conjunction with others. Even parents who don’t like each other will almost always come together, discuss what’s best, and do what’s right for their kids. Because this is the reality of most Utah divorces and break-up situations, joint legal custody makes a lot of sense and is best for kids.
A prime example of this is braces. Braces are usually not medically necessary. Despite this, almost every divorced couple I know talks to each other cordially and comes up with a plan to get Junior his braces when the time comes. They talk about the who, the when, the cost, and they do it for the good of their child.
As with anything in divorce and child custody cases, there will be bumps in the road. Parents won’t always agree about everything. This is why, even when you share joint legal custody, one parent is usually awarded final decision-making authority. This means parents still discuss all major decisions, and talk through any disagreements, but when there is a serious disagreement that cannot be solved through discussion (and many times mediation), then one parent is able to make the final decision.
Judges will almost always designate a final decision-maker simply because judges do not want parents coming before them whenever a disagreement arises.
If one parent really feels the other parent’s decision hurts the kids, then there is always the option to take the matter to court to have it reviewed. In our office we have seen thousands of cases, and maybe a handful (three to five) have gone back before a judge to address legal custody issues. It just doesn’t happen that often. (When it does, it’s usually a situation in which one parent wishes to change schools and the other parent disagrees with the change.)
So, again, joint legal custody is the norm in Utah, and for good reason. It requires parents to discuss major life decisions and work with each other for the good of their kids. Even though it may be hard, this process usually creates the best results for families, even divorced families.
Appendix of Utah Laws Regarding Joint Legal Custody
Utah Code, Section 30-3-10.1. Definitions — Joint legal custody — Joint physical custody.
As used in this chapter:
| (1) |
“Joint legal custody”:
| (a) |
means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified; |
| (b) |
may include an award of exclusive authority by the court to one parent to make specific decisions; |
| (c) |
does not affect the physical custody of the child except as specified in the order of joint legal custody; |
| (d) |
is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and |
| (e) |
does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child. |
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Utah Code, Section 30-3-10.2. Joint custody order — Factors for court determination — Public assistance.
| (1) |
The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child. |
| (2) |
In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:
| (a) |
whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody; |
| (b) |
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; |
| (c) |
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; |
| (d) |
whether both parents participated in raising the child before the divorce; |
| (e) |
the geographical proximity of the homes of the parents; |
| (f) |
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; |
| (g) |
the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; |
| (h) |
the past and present ability of the parents to cooperate with each other and make decisions jointly; |
| (i) |
any history of, or potential for, child abuse, spouse abuse, or kidnaping; and |
| (j) |
any other factors the court finds relevant. |
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