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Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0
(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
Child custody is based on the “best interests of the child,” which is, according to Utah courts, a mixed question of law and fact. If the higher courts or the legislature gave no further guidance to judges, the term “best interests of the child” could very well be equivalent to “what the judge ate for breakfast.” In order to avoid this result, the courts and the legislature have created “factors” for judges to consider and address when determining the “best interests” of children.

Primary Caretaker factor: The Utah Supreme Court decided in Pusey v. Pusey in 1986 that in any custody decision, courts must identify the “primary caretaker.” Pusey officially discontinued “gender-based” presumptions (in that case, the presumption that the mother gets custody) and mandated that courts use “function-related” factors instead.
Statutory Factors: The legislature has stated in Utah Code s 30-3-10 that courts are to consider the following factors in determining the best interests of the children:

  • the past conduct and demonstrated moral standards of each of the parties;
  • which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
  • the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child.

Statutory Joint Custody Factors: In deciding whether to award joint custody, Utah Code s 30-3-10.2 states that the courts are to consider the following factors:

  • whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
  • the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
  • whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact 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 reason so as to form an intelligent preference as to joint legal or physical custody;
  • the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
  • 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 kidnaping;
  • any other factors the court finds relevant.
Court Rule Factors: Most recently, the Utah Supreme Court created the following list of standardized factors to be addressed by professional custody evaluators. The list is embodied in Rule 4-903, Utah Code of Judicial Administration:

  • 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;
  • 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;
  • 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.
Case Law Factors: The following additional factors have been addressed in case law as appropriate for the courts’ consideration for custody:

  • Greater flexibility to provide personal care for the child;
  • Parent with whom child has spent most time before custody determination;
  • Integration into family/bonding with either parent;
  • Stability of environment;
  • Religious training of children;
  • Abuse and neglect by a parent;
  • Substance abuse by a parent;
  • Mental instability of a parent;
  • Perjury and other false statements by a parent;
  • Interference with visitation or willingness to allow visitation;
  • Frequent changes of residence;
  • Move out of state;
  • Nonmarital sexual relationships;
  • Homosexuality;
  • Relationship with step-parent;
  • Relationship with step-siblings (preference to keep siblings together);
  • Help from grandparents or other relatives;
  • Child’s preference.


Factors for Deviating from Standard Parent-Time: Normally, the standard minimum parent-time is presumed to be in the best interests of the children. The following factors have been outlined by the Utah legislature in Utah Code s 30-3-34 for the court to consider in deciding whether to deviate from the standard parent-time schedule, up or down.

  • Parent-time would endanger the child’s physical health or significantly impair the child’s emotional development;
  • The distance between the residency of the child and the noncustodial parent;
  • A substantiated or unfounded allegation of child abuse has been made;
  • the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;
  • the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
  • the preference of the child if the court determines the child to be of sufficient maturity;
  • the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
  • shared interests between the child and the noncustodial parent;
  • the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
  • the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
  • a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
  • the minimal duration of and lack of significant bonding in the parents’ relationship prior to the conception of the child;
  • the parent-time schedule of siblings;
  • the lack of reasonable alternatives to the needs of a nursing child;
  • and any other criteria the court determines relevant to the best interests of the child.

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