Whether your custody dispute is part of a divorce, parentage or modification, custody litigation is not easy on parents or children. In Utah, the court determines which parent gets custody by examining the best interest of the children. There are two main areas of custody that need to be addressed in every case: 1) legal custody, 2) physical custody. Legal custody refers to the major decisions that need to be made as parents in relation to your child’s health, education and religion. Physical custody is about where your child resides and what the parent time schedule and parenting plan will include.
Utah defines physical custody as either “sole” or “joint” based on the number of overnights the children spend with each parent. Some parents assume that joint physical custody means an equal 50/50 schedule, but that is not the case under Utah law. Joint custody is any parent time schedule where the children spend more than 110 overnights with both parents. Sole physical custody is when the children live with one parent, and the other parent exercises a minimum visitation schedule of essentially every other weekend on one evening a week. In Utah, there is a “legal presumption” that joint custody is in a child’s best interest; but since joint custody schedules include a variety of options that include 50/50, 60/40, 70/30 and other schedules in-between, there is still a lot that goes into deciding what schedule is best for each family. Additionally, the presumption for joint custody may be rebutted with evidence of, among other things, past abuse, addiction, major failures to coparent, and significant distance between the parents.
Sometimes the court appoints an attorney for the child, which we refer to as a Private Guardian ad litem (‘PGAL’). Generally, a PGAL’s duty is to report the child’s wishes to the court; but children do not get to choose which parent they live with. For older children (14 and up) the court tends to give more consideration to a child’s wishes. But regardless of the child’s age, the child’s wishes are just one of many factors the court will consider when determining custody and parent time.