Fighting for Fair Child Custody and Visitation

If you have children, custody is typically the single most important aspect of a divorce or parentage action. If you choose to hire an attorney, you'll likely want someone who understands how to negotiate effectively on your behalf, or convincingly present your case to the court if litigation is necessary. Nelson Jones, PLLC, has that experience, and we pride ourselves in our ability to deliver results and value for our clients.

Child custody and visitation –typically called "parent time" in Utah– is actually a two-part determination. One deals with the legal right to make decision for and about you children and the other deals with the time you are entitled to spend with them. Both aspects are decided separately but are, of course, closely related. It is important to note that the specifics of custody rights can be addressed with a parenting plan.

Part I — Legal Custody

Simply put, legal custody concerns the power to make decisions about a child's upbringing, including deciding religious instruction, determining enrollment in school, making health care decisions and participating other major decisions affecting the child's life. Legal custody also includes the right to be notified of, and participate in, significant events such as school activities, sports or other extracurricular activities.

Legal custody can be awarded solely to one parent, but, at least where both parents desire to be involved in the child's life, joint legal custody is common. In fact, in Utah, joint legal custody is the default but one parent can be awarded sole custody based on certain factors. When there is joint legal custody, one parent can have tiebreaking authority, effectively giving them the final say on disputed issues.

Alternatively, the parties can agree to a process such as mediation to resolve any disagreements they might have. Fortunately, legal custody is often flexible, meaning that parties can develop the rules and roles that they want and that will be best for their children. On the flip side, if the parties cannot agree, figuring out legal custody can become an expensive part of the divorce dispute.

Part II — Physical Custody

Physical custody determines where your children will live, and how many nights they spend with each respective parent over the course of the year. Physical custody also includes the allocation of caretaking responsibilities, and has a direct affect on child support orders. The primary custodian is the parent who has the first responsibility to provide for the children's needs. This is the most common area for disputes among couples with children and can become so difficult to resolve that the Court or the parties may request the help of a neutral expert to make recommendations (i.e. a custody evaluation).

How Custody Is Determined

Custody is generally determined by considering the best interests of the children. By law, the court must consider the best interests of the children without preference for either the mother or father solely because of the biological sex of the parent. The court will consider the following factors:

  • The past conduct of each parent
  • Which parent is most likely to act in the best interest of the child
  • The depth, quality and nature of the relationship between a parent and a child
  • Whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody.
  • Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent
  • Whether both parents participated in raising the child before the divorce
  • The geographical proximity of the homes of the parents
  • The preference of the child if the child is of sufficient age and capacity to form an intelligent preference
  • The past and present ability of the parents to cooperate with each other and make decisions jointly
  • Any history of, or potential for, child abuse, spouse abuse or kidnapping
  • Any other factors the court finds relevant.

How a court assesses each of these factors and how courts typically rule on these issues are both subjects that are best discussed with a qualified legal professional. Schedule a free consultation with our lawyers in Sandy by calling 801-981-8779 or reaching out to us online.