If you have kids and you’re contemplating divorcing your spouse or breaking up with your child’s other parent, you may have some questions about how child custody works in Utah.
In fact, you might even be a little anxious or fearful about leaving, in large part because you don’t know how custody and parent-time work.
That makes sense and is entirely reasonable. We tend to fear what we don’t understand. Let’s help remove your angst or fear by guiding you through a few of the most common issues regarding custody that we get asked as Utah child custody lawyers.
What Are Some Normal Parent-Time Arrangements?
Let’s begin by laying out some of the most common parent-time arrangements Utah parents agree to.
Now, there are as many parent-time arrangements as there are families. What works for you and your children really depends on a family’s particular situation. This is why, when we sit down with clients during their initial consultations, we spend a good deal of time talking about their kids and what type of parent-time might be appropriate for them.
That said, in Utah there are three popular schedules:
- Minimum parent-time: Minimum parent-time represents the least amount of time a parent will spend with their kids. Essentially, the non-custodial parent (e.g., the parent with less time) will have the kids overnight every other weekend from Friday to Sunday, and then will have one evening a week for three hours. This parent-time schedule is really only appropriate in the most extreme of situations.
- 60/40: A parent-time schedule that has been very popular for about ten years now is a 60/40 split. One parent has 60% of overnights during the year, and the other parent has 40% of overnights. What this might look like is the parent with 40% would have the kids overnight every Thursday, and then every other weekend from Thursday through Monday morning.
- 50/50: While not nearly as popular as the 60/40 schedule, 50/50 parent-time is becoming much more common in Utah, in part because fathers are insisting on it more and more. Parents may choose a classic “week-on-week-off” schedule in which the kids stay with one parent for seven straight days, and then go to the other parent’s home for seven days. Parents may also choose what’s called the “2-2-5” schedule. In this schedule, one parent would always have the kids on, for example, Monday and Tuesday, and the other parent would always have the kids on Wednesday and Thursday, and they would alternate weekends. The 2-2-5 is the most popular of these two choices. It has the advantage of allowing kids to know they will be at the same home every week on the same days. This is important to many kids, especially those who don’t do particularly well with constant change.
How Domestic Violence Affects Custody
Let me get personal for a moment. My mother was abused during her first marriage. Thankfully, my mom’s a strong woman, so she left her first husband after only six months. She was pregnant and living in rural Utah, so that decision was difficult. Thankfully, she made it out and met my dad a couple years later.
Many women and men find themselves in a different situation, though. They have children and their suffering through domestic violence and abuse. That abuse might be physical, sexual, or mental.
Abuse affects people deeply. Victims are often afraid to leave because their abuser has told them they (the victims) will lose custody. Let me tell you, that’s a method of control, just like abuse is a method of control.
If there’s one factor that will upset the courts in Utah and cause someone to lose custody, it’s engaging in domestic violence and abuse. Sometimes, it’s difficult to prove abuse, which is why we gather any evidence we can find to give to the court.
Again domestic abuse, or a history of domestic abuse, is one of the most important factors Utah courts take into account when making custody decisions. It very often turns the tide in favor of the abuse victim, enabling the victim to receive primary physical custody in order to keep the children safe.
Many times when there has been domestic violence committed, we will file a protective order to keep our client and the children from further abuse. More on protective orders in the next section.
Because they come up so often in divorce, and because we want to help keep our clients safe, custody lawyers help with protective orders.
Courts grant protective orders when there’s been domestic violence between people who are married — or those living together or who have children together.
Protective orders act as a barrier to abuse, enabling police to arrest someone who violates any provision of an order. Possible provisions include:
- No contact with victim
- Stay-away orders from homes, places of work and worship, and cars
- Temporary parent-time
- Prohibition on possession of firearms and ammunition
- No using a third-party to contact victim
While far from perfect (they are just pieces of paper, after all), protective orders are a powerful tool to keep parents and children safe from abusers.
Protective orders can be abused, however. Some people lie in order to obtain a protective order all to get a leg up during a custody battle. Lying to gain an advantage in litigation is despicable, and we fight for our clients in these types of situations, which, unfortunately, happen much more often than they should.
One last thing: protective orders are different from restraining orders. They are different because if someone violates a protective order, that someone will go to jail because of the criminal penalties attached. Restraining orders have no criminal penalties attached, only civil. This means when someone violates a restraining order, you have to take the violation before a civil judge and the judge can only impose civil sanctions, which almost never include jail time.
At what Age Can Kids Decide where they Want to Live?
As a Utah child custody lawyer, one of the most common questions people ask me is: “When can my son/daughter decide where to live?”
The legal answer, according to Utah law, is eighteen. Once they’re an adult, they can choose whatever they want.
Until eighteen, however, the situation is more difficult to navigate.
There is specific language in Utah divorce law regarding when a court will give added weight to a child’s preference about where to live and what type of time to spend with each parent.
The language is found in Utah Code, section 30-3-10(1)(e), which says:
“The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.”
So, there is a line at fourteen where a judge will give a kid’s opinion added weight, but it will never be the single controlling factor in the judge’s decision.
Of course, all this assumes the judge even considers a kid’s preference. Like it says in the law, the judge doesn’t have to (“[t]he court may inquire”).
Most often, courts do not, in fact, consider a kid’s preference. Why? Because putting a young child in the middle of a custody battle by making them take sides is not what Utah judges want to do, so, usually, they don’t.
Now, There are situations in which kids’ opinions need to be heard. This is especially true when kids are a bit older and more well-reasoned.
In these situations, a judge will often appoint a guardian ad litem (GAL) to talk with the children and conduct an independent investigation about what’s going on. If the kids are mature enough, the GAL will ask them what their preferences are and then relay those preferences to the judge.
So far, I’ve discussed the legal side of things. There’s a more practical side to examine for a moment.
Nothing I’m about to tell you is contained in any Utah law. This is about how things work out in real life, not in a book.
When a kid turns sixteen, he or she pretty much chooses where to live.
At that age, kids have cars, they have friends, and they don’t like being told what to do. All of that adds up to freedom, and with that freedom comes the de facto freedom to choose with which parent they want to spend their time.
Mental Illness and Custody
One of the more popular threats soon-to-be-exes make in order to control their significant others is this: “You have [insert mental illness]. There’s no way a judge will give you custody. If you leave, I’ll get the kids.”
This, like so many things soon-to-be-exes do, is simply a method of control, and it’s almost always untrue.
In Utah, just because you have a mental illness does not mean you’ll lose custody of your kids. It doesn’t even mean you’ll receive less time with your kids.
One of the reasons for this is so many people suffer from some type of diagnosable mental illness during their life. If Utah took away kids because parents suffered from depression, anxiety, or the like, that’s all the state would do. What’s more is that people tend to recover from mental illness quickly.
Really, the only time mental illness will result in a parent losing custody or parent-time is when the mental illness: (1) causes a parent to pose a significant safety risk to kids, or (2) creates a situation in which a parent is actually incapable of caring for kids.
Do Divorce and Custody Cases Go to Trial?
A major source of stress for people thinking of going through with a custody or divorce case is that they don’t want to go to trial.
This fear is reasonable. Let me let you in on a little secret: no one likes going to trial, not even attorneys.
Thankfully, divorce and custody cases almost never go to trial. Our statistics show that maybe 1%–2% of these cases make it before a judge for trial.
The vast majority of the time, we go to mediation, negotiate hard, and come to an agreement. Most of our cases never even see the inside of a courtroom once.
Now, keep in mind that if our clients need to go to court and argue in front of a commissioner, or go to trial before a judge, we will do exactly that. In fact, we do it all the time, it’s just not our first choice for our clients because:
- Going to court and trial is expensive.
- Going to court is emotionally difficult for our clients.
- Going to court and trial is very difficult on kids.
- Going to trial takes a long time.