Custody of Minor Children

 

For younger families, a major portion of the divorce proceeding centers around custody of the minor children.  In most circumstances, the custody determination will require the development of a parenting plan to govern not only the parent-time shared between the parties but also the process for making decisions regarding important aspects of the children’s lives and a mechanism for resolving the inevitable disputes.

 

Physical custody

 

This aspect of the parenting plan governs where the minor children live, and when they will spend time with the non-custodial parent.  This portion of the parenting plan can become more contentious as it relates to child support.  However, generally children benefit from spending as much quality time with both parents as circumstances allow.  While the amounts and schedules for parent-time can (and probably should) be as different as there are divorced parents, physical custody breaks down into two main categories, sole and joint.  Interestingly, the terminology for physical custody centers on how many overnight visits the children have with the non-custodial parent.

 

Sole physical custody

 

This means that one parent is designated the sole physical custodian, with the minor children spending fewer than 110 overnights with the non-custodial parent.  This is the most common physical custody arrangement, with the non-custodial parent awarded “standard parent-time” by the court.  Standard parent-time consists of overnight visits every other weekend, along with one regular evening visit (not overnight) each week on an evening set by the non-custodial parent.  Utah Code Annotated  30-3-35 (2009).  This would also include the standard holiday schedule, which generally alternates holidays every other year.  Parents should be aware that these statutory holiday schedules change periodically, and should try to incorporate a specific schedule into a divorce decree and parenting plan, so the state legislature does not meddle in your family holiday traditions.  In addition to the weekend and holiday visits, both parents can designate two weeks for “uninterrupted” parent-time.  The non-custodial parent can also request an additional two weeks of “interrupted” parent-time, when the custodial parent would have visits with the child on the standard parent-time schedule.  Parents should always remember that standard parent-time is defined as the minimum parent-time awarded by law, and that the parties can always agree to additional parent-time.

 

Joint physical custody

 

This means that the children spend at least 111 overnights with both parents, not including the holiday parent-time, and that both parents contribute to the costs associated with rearing children in excess of the ordered child support amount.  So, under the sole physical custody scenario, a parent would exercise 78 overnight visits with the minor children.  In order to meet the legal standards for joint custody, the children would have to exercise approximately three additional overnight visits each month at a minimum.  Even in circumstances where children equally split time between both parents, one parent’s home can be designated the primary residence for purposes of determining school attendance and for determining how to apply the statutory holiday schedule, if such is applied to the parents.

 

Legal custody

 

This is an often misunderstood area of the law with regards to parents and parenting plans.  Legal custody basically means who makes important decisions regarding the children, most often related to medical, education and religious aspects of the children’s lives.  Again, this can be sole or joint, with joint legal custody being the most common form of legal custody granted.  However, even in cases of joint legal custody, the court can designate on party to be the final decision maker on certain types of decisions, in the event that the parties cannot agree on a course of action regarding the children.

 

Parenting Plan

 

Anytime a party asks for either joint legal or physical custody, that party is responsible to provide the court with a proposed parenting plan.  That parenting plan should not only outline the parent-time schedule, but also recognize the obligations and commitment of each parent to encouraging the development and continuation of health parent-child relationships with both parents.  The objectives of the parenting plan are as follows:

(a) provide for the child's physical care;

(b) maintain the child's emotional stability;

(c) provide for the child's changing needs as the child grows and matures in a way that minimizes the need for future modifications to the parenting plan;

(d) set forth the authority and responsibilities of each parent with respect to the child consistent with the definitions outlined in this chapter;

(e) minimize the child's exposure to harmful parental conflict;

(f) encourage the parents, where appropriate, to meet the responsibilities to their minor children through agreements in the parenting plan rather than relying on judicial intervention; and

(g) protect the best interests of the child.

Utah Code Annotated  30-3-10.9 (2009).  The other major requirement of the parenting plan is a method for dispute resolution to be utilized by the parties prior to involving the court.  The parenting plan becomes the controlling agreement between the parties on any questions involving the minor children.

 

Custody evaluation

 

If the parties are unable to craft a mutually agreeable parenting plan, or if one parent wants to change the previously ordered custody situation, the court can order the parties to undergo a custody evaluation.  The evaluation is conducted by an appropriately qualified professional.  See Utah Code of Judicial Admin. Rule 4-903(1) (2009).  The process can take several months, and usually involves interviews with the parties and the children, in a clinical and in the home settings, as well as various forms of psychological testing.  The process is also costly, with the party seeking to change an existing custody arrangement likely to bear the initial financial burden of the custody evaluation in full.  The custody evaluator will present her findings at a settlement conference, at which time the ultimate recommendation can be presented to the parties.  If the parties still cannot reach a resolution regarding the custody of the children, the custody evaluator prepares a final report and becomes a key witness at trial. 

 

When evaluating the questions of physical and legal custody, the custody evaluator is trying to provide the court with information as to what sort of custody situation would be in the best interest of the children.  The custody evaluator must provide an evaluation on the following list of factors:

•the child’s preference;

•the benefit of keeping siblings together;

•the relative strength of the child's bond with one or both of the prospective custodians;

•the general interest in continuing previously determined custody arrangements where the child is happy and well-adjusted;

•factors relating to the prospective custodians’ character or status or their capacity or willingness to function as parents, including:

•moral character and emotional stability;

•duration and depth of desire for custody;

•ability to provide personal rather than surrogate care;

•significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;

•reasons for having relinquished custody in the past;

•religious compatibility with the child;

•kinship, including in extraordinary circumstances stepparent status; and

•financial condition;

•evidence of abuse of the subject child, another child, or spouse; and

• any other factors deemed important by the evaluator, the parties, or the court.

 See Utah Code of Judicial Admin. Rule 4-903(5) (2009).

 

Paternity

 

When a child is born to unwed parents, only one parent has a clear legal tie to the child (the mother).  Fortunately, many people are able to work together for a while in that situation, and it works out well.  However, when the relationship ends, and the parents no longer live together, the father who has not established his rights is left as a legal stranger to the child.  There are certain things that must be done, either by the father or by the mother, in order to establish those rights and provide protection of those rights to the father.

 

Voluntary Declaration of Paternity

 

If both parents are certain of the parentage of the child, they can execute a Voluntary Declaration of Paternity.  The form is available from the Utah State Office of Recovery Services ((801) 536-8500).  Once both parents have signed and notarized the form and it is filed with the Office of Vital Records, the father has all of the legal rights and duties of a parent in a marriage.  Utah Code Annotated  78B-15-305(1)(2009).  However, the Voluntary Declaration of Paternity is not sufficient to set up parent-time or custody; such issues would still need to be addressed through court proceedings, similar to parties in a divorce proceeding.

 

Paternity determination through ORS

 

Either parent can also initiate a paternity determination through the Utah State Office of Recovery Services.  ORS will conduct the necessary genetic testing to determine the paternity of the child.  Based upon that paternity determination, ORS will also establish the amount of child support through an administrative order.  While this does establish child support, it does not create the same rights as the Voluntary Declaration of Paternity or a legal finding of paternity.  However, it can be the basis for such a paternity action through the courts.

 

Court process

 

A paternity action is initiated similarly to a divorce action.  The party seeking to establish paternity files a petition, outlining the basis for the allegation of paternity (i.e., genetic testing through ORS), the proposed custody and parenting plan arrangements, information relative to child support, and any other matters relative to the parenting situation.  Once that petition to establish paternity is filed, it follows a similar course to a divorce action.

 

What are the ramifications of a Utah protective order?

 

Generally, being served with a protective order is not a total surprise.  The parties involved have typically had some sort of altercation or argument prefacing one party’s attempt to inject the court into the dispute resolution process.  Aside from all of the emotional strain connected with the relationship and the stresses created therein, a protective order can impact a person for the duration of his or her life.

 

The initial protective order served is ex parte, meaning that it was issued without any input from the other party(ies).  Basically, the requesting party had to allege sufficient facts to show that s/he was subjected to abuse or domestic violence, or faced a substantial likelihood of being subjected to abuse or domestic violence.  Utah Code Ann. § 78B-7-103 (2009).  The requesting party must be able to establish as well some protected relationship, namely that the parties were married or lived together, have a child together, or are related by blood or marriage.  Utah Code Ann. § 78B-7-102 (2009).  This is a pretty wide net, and has included persons simply living together in a roommate situation. 

 

The ex parte protective order will provide an opportunity for the responding party to attend a hearing to present evidence as to why the protective order should not be entered.  Some decide that not talking or having contact with the requesting party is a great idea, but simply not responding can substantially impact important personal rights.  Here are some of the impacts that the entry of a permanent protective order can have:

 

 

Because of the serious ways in which this protective order will affect a person in the immediate future, as well as long into the future, anyone served with a protective order should seek out help in addressing this situation.  In domestic situations involving divorcing couples, for instance, the parties could agree to a mutual restraining order as part of the divorce action.  This helps to diffuse some of the volatility of the divorce situation without saddling either party with long-term heavy restrictions.

 

Once a person has been served with a protective order, there is a limited time in which to prepare to meet very serious allegations.  The party seeking protection will most likely be represented by an attorney at the hearing, either of their own choosing or provided at no cost.  The responding party is not entitled to counsel, even though the protective order has almost crime-like ramifications.  However, the course of the protective order hearing could have a dramatic effect on any current or future legal proceedings involving the marital or filial status of the parties.  It is imperative to address these issues with qualified legal counsel, so that no party simply acquiesces to the entry of the protective order without fully understanding what rights are being sacrificed by so doing.  If you have been served with a protective order, please talk with someone about your rights before you go to your scheduled protective order hearing.  Failure to do so could take a difficult, embarrassing and stressful and make it of perpetual duration.