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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.)

Determining child custody used to be very simple. If you hired a lawyer in the early 1800s for a child custody dispute, the answer would have been easy: Children are property, and Dad decides what to do with them. If you hired a lawyer in the 1940s for the same thing, the answer would still be easy, but opposite: Mom gets the kids and Dad pays the bills. The answers are not as easy today, and as a result, lawyers have a lot more work to do in a custody case than they once did.


The first thing people want to know when they come to a lawyer is what their rights are before there are any court orders about child custody. The answer is simple, but not necessarily helpful: Before court orders are made, it is generally legal for either parent to take and keep the children whenever and wherever they want, even if the other parent disagrees. In other words, before court orders are made, the “law of the jungle” controls.

The ‘law of the jungle’ works just fine as long as both parents agree on what is best for their children and act accordingly. But as soon as there is a dispute, one of them will inevitably run to the court house to ask the judge to divide up the rights. Beware, however: Your conduct before court orders may affect whether the judge believes you are likely to act in the children’s best interests. You may want a lawyer’s advice to make sure you do not do anything that is likely to impair your rights to custody or parent-time when a judge does get involved.


“Custody” is the right to manage your child. As parents, you have the legal right to decide what your child eats for breakfast, what he wears, how he cuts his hair, where he sleeps, what religion he practices, how he is disciplined, whether and when he goes to the doctor, and the list goes on. When two parent do not get along, the court will divide up their rights according to “the best interests of the children.” The court’s order is essentially a list of rules and conditions stating when each parent gets the kids and, when necessary, how they will go about communicating and making parenting decisions.

If the parties do not agree, the court, at trial, award custody based on “the best interests of the children.” Based on the guidelines made by the Utah legislature, “the best interests of the children” typically means that one parent gets physical custody and the other parent gets a standard minimum parent-time schedule. There is also a set of advisory guidelines about parental communication and decision-making that are typically considered in the best interest of the children.


So which parent gets custody and which parent gets a minimum parent-time schedule? Until 1986, the Utah courts used to hold to a presumption that the mother should get custody, unless there was good evidence showing that this would be bad for the child. In the 1986 landmark Utah case of Pusey v. Pusey, the Utah Supreme Court followed the courts of other states in disavowing “gender-based” factors and using only “function-related” factors.

Primary Caretaker Factor. Ever since the Pusey decision, the custody decision no longer begins with the question “who is the mother,” but begins with the question “who is the primary caretaker.” Even though the court in Pusey said that the primary caretaker factor is “not exclusive,” it has clearly been the biggest factor in the vast majority of custody decisions. The term “primary caretaker” generally means the parent who has done the most staying home, watching, waking, dressing, cooking, cleaning, bathing, taking to school, etc. Since the tradition of fathers working and mothers staying home remains common (although it is becoming less so), it is true that mothers get custody most of the time, despite the abandonment of gender-based factors.

Nursing Mother Factor. Although there is little in the statutes or case law addressing it, a type of maternal presumption still survives when it comes to deciding the custody of breast-fed infants, purely because it is best to have the child in the mother’s care for breast-feeding. Although the “nursing mother” factor is unavoidably gender-biased, since it is biologically impossible for fathers to breast-feed, it is still a “function-related” factor, and is something akin to the primary caretaker factor.

Other Factors. There are numerous other factors a court can consider in determining custody cases. To quote the Utah court of appeals, “The importance of the myriad of factors used in determining a child’s best interests ranges from the possibly relevant to the critically important.” (Hudema v. Carpenter, a 1999 decision).

Joint Physical Custody. Joint physical custody is a possible outcome in a Utah divorce case. The legislature has laid down factors that a court should consider before awarding joint custody. In general, joint custody is only possible when parties live close together and are able to get along. As a practical matter, joint custody almost never happens when either of the parties does not want it, and is almost always the result of a negotiated settlement agreement rather than litigation.


When the court decides custody, the court also has to decide what parent-time the other parent gets. The legislature has stated ideal that the ideal parent-time order ensures “frequent, meaningful, and continuing access to each parent” and has “both parents actively involved in parenting the child.” Utah Code 30-3-32.

Standard Schedule. The legislature has made a standard minimum parent-time schedule that is presumed to be in the best interests of the children unless the parties agree otherwise. The standard parent-time schedule created by the legislature is essentially designed around the public school schedule. It gives the custodial parent the children during school, and gives the non-custodial parent about half of the weekends, holidays, and summer-time, as well as some weekday evening time.

Deviating from the Standard Schedule. Although there is a presumption that the standard parent-time schedule is in the best interests of the children, that presumption can be rebutted. The court can deviate from the standard schedule if one parent presents enough evidence that the standard schedule is not in the best interests of the children. Similar to custody decisions, there are a number of parent-time factors that the legislature has set forth that judges must consider in determining whether to deviate (up or down) from the standard parent-time schedule.

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