What does it mean to have custody of a child in Utah? "Custody" tends to be a very loaded term, and misconceptions surrounding this term abound. In its most general terms, custody determines the amount of time that each parent is responsible for the physical care of the child, and how much authority each parent has with respect to important decisions facing the child's life. The degree to which each parent may exercise these rights depends upon what type of custody arrangement is put in place. There are several possible variations of "custody" (i.e. custody arrangements) and each carries with it varying degrees of the right to care for the child and make important decisions for the child. The distinctions between each of these custody arrangements will be discussed to help any of those struggling to understand "custody" as it is defined in Utah.
The first important distinction that should be made with respect to "custody" is the difference between physical custody and legal custody. In simplest terms, legal custody is the right to make important decisions regarding the minor child, whereas physical custody determines where the minor child physically resides. Let's deal with these concepts in greater detail, starting with the concept of physical custody.
Physical custody is the determination of where the child will reside physically. There are three basic types of physical custody:
a) Sole Physical Custody
b) Joint Physical Custody
c) Split Custody
Sole Physical Custody / Primary Physical Custody
It may sound overly simplistic, but whether a parent has sole or joint custody depends upon the number of overnights each parent has with the child. In Utah, a parent is considered to have sole physical custody, also known as "primary physical custody," where one parent has the child for at least 253 overnights out of the year. Conversely, a parent is considered to be the "noncustodial parent" if he or she has less than 111 overnights with the child in a given year. A noncustodial parent still has the right to a certain amount of time with the child, but this time is not considered "custody." The time a noncustodial parent shares with the child is known in Utah as "parent-time," or sometimes commonly known as "visitation." A detailed discussion of a noncustodial parent's rights to parent-time will have to be reserved for a later blog post. However, for immediate reference, read Utah Code Annotated § 30-3-35.
Joint Physical Custody
In staying with our theme of the number of overnights, Joint Physical Custody can be defined as an arrangement where both parents have at least 111 overnights in a given year. Utah Code Annotated § 30-3-10.1(2), Joint Physical Custody states the joint physical custody "...means the child stays with each parent overnight for more than 30% of the year..." Hence, if both parents have at least 111 overnights with the child, or 30% of the time, the parents share joint physical custody. The statute also notes that joint physical custody "...can mean equal or nearly equal periods of physical custody..." (emphasis added). Thus, joint physical custody "can" or "may" be an even 50/50 split of time, but does not have to be. Again, where both parents have the child for at least 30% of overnights in a given year, the parents share Joint Physical Custody.
The last basic form of physical custody is Split Custody. Under this custody arrangement, each parent has primary physical custody of at least one of the minor children-that is, each parent has one or more of the children for at least 253 overnights out of the year. So, for example, in a family where there are four children, a split custody arrangement might place two of the children with Mom and two of the children with Dad.
It should be noted that this custody arrangement is not very common. Ordinarily, Courts tend to favor custody arrangements that keep the children together. Where possible, Courts will tend to favor keeping the children together to maintain the stability of the children. Splitting the children up between the parents might be "fair" to the parents, but it might not be fair to the children, and that is the determination the Court is more interested in making. The standard that the Court applies is always "the best interests of the children."
Legal custody is essentially the right to make important decisions regarding the minor child-decisions related to such important matters as the education, religion, and the health and safety of the child. Legal custody does not cover basic day-to-day decisions. Generally, "[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent." UCA § 30-3-10.9(6).
There are two possible arrangements for legal custody: Joint Legal Custody or Sole Legal Custody. In a joint legal custody arrangement both parents share the authority to make decisions for the benefit of the child. The statute defines this type of arrangement as "...the sharing of the rights, privileges, duties, and powers of a parent by both parents..." UCA § 30-3-10.1(1).
Joint Legal Custody
A joint legal custody arrangement is the most common arrangement. This is because Utah law holds that there is a "rebuttable presumption" that joint legal custody is in the best interest of the child. Utah law favors both parents taking an active role in making important decisions in the child's life, regardless of which parent the child resides with. UCA § 30-3-10(1)(b).
Sole Legal Custody
Because Utah law favors a joint legal custody arrangement, courts will not award a parent with sole legal custody unless there is good cause to do so, such as where domestic violence has been committed in the presence of the child, the child has special needs, or other good cause reasons. Thus, in most cases, the parents will share joint legal custody.
You now have a basic understanding of the various types of custody arrangements that are possible in Utah. However, to discuss what type of custody arrangement would be best for you and your family, and what factors the Court will consider in making custody determinations, you should call for a free consultation.
4001 South 700 East
Salt Lake City, UT 84107