Child Custody Provo Utah

Kelly Peterson | Law Office of Kelly Peterson

Utah Code Section 30-3-10 and Rule 4-903 of the Utah Rules of Judicial Administration set forth the factors the Court uses to determine custody.

Custody Factors.

Rule 4-903 Factors – Custody Determination Factors.

  1. Child’s preference
  2. Benefit of keeping siblings together
  3. Relative strength of child’s bond with one or both of the prospective custodians (Section 30-3-10 characterizes “bond” as meaning the depth, quality, and nature or the relationship between a parent and child)
  4. The previous custody arrangement where the child is happy and well adjusted
  5. Parties’ character/capacity or to function as parents, including
    1. moral character and emotional stability
    2. duration and depth of desire for custody
    3. ability to provide personal rather than surrogate care (e.g., daycare
    4. significant impairment of ability to function as parent through drug abuse, excessive drinking or other causes
    5. reasons for having relinquished custody in the past
    6. kinship, including in extraordinary cases stepparent status
    7. financial condition
    8. evidence of abuse of subject child, another child, or spouse
  6. Other possible factors
    1. Whether a parent is more likely to interfere with or not follow visitation orders or other court orders.
    2. A parent’s demonstrated willingness or unwillingness to protect the children from parental conflict, overburdening, disparagement of the other party, or other inappropriate behaviors.
    3. The ability of the parties to consistently work together to make decisions in the best interests of their child.

Explanation of custody determination factors

Child’s preference

The older the child, the more consideration the court gives to this factor. Many people think that child preference is the most important factor. However, it is only one of many factors the Court must consider. The Child does NOT get to decide where to live. However, when the child is 16, the statute requires the court to give added weight to the child’s preference. Even then the decision is the Court’s to make, not the child’s. .

Some parents, under the misguided belief that child’s preference is key, put undue pressure on child to develop preference in their favor. This is never a good idea.

Benefit of keeping siblings together

There is a presumption in favor of keeping siblings together. That presumption can be rebutted, but is difficult to overcome. There is a presumption that when life is being disrupted, the child finds stability in his or her bond with siblings.

Strength of child’s bond with one or both parents

This means depth, quality and nature of relationship. If one parent has behaved more like a “disneyland parent” or acts more like a friend than a parent, the court will favor the parent whose relationship to the child is more parent-like.

General interest in continuing a previous arrangement where the child is happy and well adjusted

This is the most important factor.

The Utah Supreme Court determined that the biggest factor for court to consider was who had been the primary caretaker, so long as the child is happy and well-adjusted. The “primary caretaker presumption” can be challenged, however. The most common ways to challenge this presumption is to show evidence of (1) substance abuse, (2) child abuse or neglect, or (3) that the caretaking parent is (a) not supportive of the other parents relationship with the child; (b) over involves the child in parental conflict; (c) overburdens the child with adult issues; or (d) consistently makes with inappropriate remarks that tend to diminish the love of the child for the other parent.

Depth and duration of desire for custody

If one parent is in and out of the child’s life and the other parent has been steadily present, the court will favor the steady parent who has demonstrated a desire for custody by their long-term behavior.

Ability to provide personal rather than surrogate care.

If one parent is financially capable of staying home and spending more time with the child, rather than needing to work in order to support the child, this factor can weigh in their favor. HOWEVER, Once parents are divorced, they are legally obligated to provide financially for their kids. Some parents mistakenly believe they can stay home with kids because they did so during the marriage, and sometimes develop an opinion that they don’t have to work. Divorce changes that circumstance, unless the parent’s finances allow for it. In the end, the Court usually assumes that both parties will need to work to support the child.

Significant impairment of ability to function as parent.

Substance abuse can be another factor: impairment to function as a parent due to substance abuse can be a critical factor, if present.

Reasons for having relinquished custody in the past.

Kinship, including in extraordinary cases stepparent status.

The court can consider kinship, for example when one parent has a lot of extended family around. Another kinship situation the court might consider is when the child is very close to a half-sibling.

If a parent is involved in a relationship that has a detrimental impact on the kids, this factor can impact custody, particularly if the person in that relationship is staying overnight. The key is that there has to be evidence that this parental relationship is likely to have a detrimental effect on the kids.

Financial condition.

Typically, this is only persuasive in extreme cases. For example, if a parent refuses to get a job, has been bumping along on public assistance for years and has zero ambition, that might weigh against him/her because it shows an unwillingness to do what it takes to take care of the child. Also, if one parent is so much better off financially that they can provide significant opportunities for the child the other cannot, that might weigh in their favor. It is unusual for this factor to be more than slightly persuasive to the judge.

Evidence of abuse of subject child, another child, or spouse

This can include any form of abuse or neglect. Although domestic violence between spouses can impact custody, courts do not necessarily assume that a parent who abuses the other parent will necessarily abuse a child, because comparing the nature of these relationships is like comparing apple and oranges. It is a red flag, but not conclusive.

Whether a parent is more likely to interfere with or not follow visitation orders or other court orders.

This factor is often very significant.

A parent’s demonstrated willingness or unwillingness to protect the children from parental conflict, overburdening, disparagement of the other party, or other inappropriate disclosures.

If a parent involves the children in the parental conflicts, overburdens them with adult issues and makes inappropriate remarks in front of them, this factor may weigh against them.

Other Factors

Rewards/Punishments. Utah Appellate Courts have emphasized court does not award custody to punish or reward either parent for their behavior. The focus is on the child’s best interests, not whether one parent should be rewarded or punished.

Joint Legal Custody

The Utah legislature has recently enacted a statute that requires the court to begin with assumption that joint legal custody is in the best interest of the children. The factors that the court must consider when analyzing this assumption are in Utah Code Section 30-3-10.2.

The factors basically boil down to geographical proximity, and how well the parties are able to work together to make joint decisions for the best interest of the kids.

Modification Of Custody

To modify custody, the petitioner must prove two things:

  1. a substantial and material change in circumstances has occurred; and
  2. it is now in the best interest of child to change custody.

If custody was never litigated in the past, either because it was obtained by default or by stipulation of the parties, the court may consider both of those prongs together without necessarily having to find a change of circumstances first.

Once a Petition to Modify has been filed, in order to make a temporary change to custody, you have to show either (1) that parties ignored the terms of the previous decree; or (2) that immediate and irreparable harm will result if no change to custody is made.

Provo Child Custody Lawyer Kelly Peterson is a Child Welfare Law Specialist (CWLS) which makes him uniquely qualified to provide quality and experienced legal services in Utah County Child Custody cases. Working with Kelly ensures that the best interest of the child is represented. To schedule an appointment with Provo Child Custody Lawyer Kelly Peterson, please call (801) 616-3301 today!

Law Office of Kelly Peterson
226 W 2230 N #105
Provo, UT 84604
Phone: (801) 616-3301

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children