Custody and Visitation Rights in Utah
| Jurisdiction | Utah,United States |
| Citation | Vol. 7 No. 10 Pg. 8 |
| Pages | 8 |
| Publication year | 1994 |
Harry Caston, J.
There are two types of custody arrangements: sole and joint. A sole custodian exclusively exercises parental rights, privileges, duties and powers and is responsible for the child. This responsibility includes the day-to-day care of, and the right to make all decision that affect, the child.
Joint custody, on the other hand, embraces various divisions of decisionmaking authority and differs from sole custody when the parties actually share the "rights, privileges, duties and powers of a parent. [1] Sharing may require each parent to be solely responsible for certain decisions or that both will be jointly responsible for all or at least some of the decisions affecting the children. In the latter situation, impasses can be resolved by I allowing one of the parents ultimate decision-making power, or by resorting to mediation or alternative dispute resolution.
The joint legal custody provisions of the Utah Code also anticipate that one parent may be solely responsible for the children.[2] Although the custody arrangement would then be very similar, if not identical, to sole custody, there is great value in designating such an arrangement "joint legal custody." The value may be the avoidance of litigation and the creation of a mutually acceptable settlement. Another potential value is the reduction of bitterness between the parties and the increase of cooperation to advance the welfare of their children.
A popular misconception is that joint custody requires the child to spend equal time with each parent. Custody refers to decision-making rights and responsibilities, not time spent. Although an order of joint legal custody may provide for equal periods of physical custody, it is also possible that the child will reside with one parent and that the other parent will have visitation rights similar to a non-custodial parent.[3]
There are two methods to obtain an order of joint legal custody. The parties may stipulate to joint legal custody. Absent an agreement, the court may nevertheless determine that "both parents appear capable of implementing joint legal custody."[4] The court could order joint legal custody in disputed matters where one or neither of the parties seeks joint legal custody.
Under either of these scenarios the court must first determine that joint legal custody is in the child's best interest.[5] Section 30-3-10.2 lists eight factors for the court to consider in making this determination. These factors include "whether the physical, psychological and emotional needs and development of the child would benefit from joint custody,"[6] whether the parents are able "to give first priority to the welfare of the child,"[7] and whether the parents possess sufficient maturity, willingness and ability to protect the child from conflicts that may arise between them.[8] As a practical matter, the court may not consider these factors where the parties have stipulated to joint legal custody. Moreover, in contested matters either or both of the parties could prevent an order of joint legal custody by convincing the court of their inability to cooperate.
SOLE CUSTODY
Divorcing parents may not be interested in, or appropriate candidates for, joint legal custody. To evaluate a client's claim for sole custody or in trying a custody dispute, the practitioner must know what factors the court will consider in awarding custody.
Custody disputes are resolved according to factors set forth by statute and case law. Section 30-3-10(1) of the Utah Code directs the court to make an order of custody "as it considers appropriate." Do not be fooled. The trial court does not have incredibly broad discretion to award custody in any manner and for any reason it deems appropriate.
What is appropriate depends upon, and is absolutely subservient to, the best interests of the child. Section 30-3-10(1) directs the court to consider a parent's "past conduct and demonstrated moral standards." These factors are relevant only to the extent that they have an effect on, or relate to. a child's best interest. If a parent's questionable behavior has no effect on the child's best interest or upon parenting ability, the behavior would have no bearing on, and no relevance to, the custody decision.[9]
In determining a child's best interest the court has the discretion to consider and weigh as the court deems appropriate the child's "desires regarding the future custody."[10] The court is also to consider "which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the non-custodial parent, as the court finds appropriate.[11]
The practitioner unfamiliar with divorce and its effects may look upon section SOS-IOCS) as an oddity. This section provides that "if the court finds that one parent does not desire custody of the child, or has attempted to permanently relinquish custody to a third party, it shall take that evidence into consideration in determining whether to award custody to the other parent."
The uninitiated practitioner also might wonder why a person would voluntarily subject themselves to the emotional and financial costs of a custody dispute if that person did not really want custody. The somber reality is that divorce can bring out the worst in people. A parent not otherwise desirous may nonetheless be motivated to seek custody for any number of reasons, including vengeance, a misplaced pleasure in making the other party miserable, the financial benefit of child support, or the fear...
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