Specific Considerations Where Child Is Not In Physical Custody Of Parent
1. If a child is not in the physical custody of the parent or parents, the court, in determining whether parental rights should be terminated shall consider, but is not limited to, the following:
a) the physical, mental, or emotional condition and needs of the child and his desires regarding the termination, if the court determines he is of sufficient capacity to express his desires; and
b) the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return him to his home after a reasonable length of time, including but not limited to:
I.payment of a reasonable portion of substitute physical care and maintenance, if financially able;
Ii.maintenance of regular parent-time or other contact with the child that was designed and carried out in a plan to reunite the child with the parent or parents; and
Iii.maintenance of regular contact and communication with the custodian of the child
2. For purposes of this section, the court shall disregard incidental conduct, contributions, contacts, and communications.
With the goal of serving the child’s own best interests, courts are tasked with deciding which parent is entitled to legal and physical custody, and whether there is room for compromise. Co-parenting is difficult enough when a couple is married and living together, but can be doubly hard when parents are separated. Courts must juggle various factors when making this important decision, but custody orders may always be revisited in court as circumstances change.
Sole vs. Joint Custody
When we refer to “sole custody,” we are typically referring to a court ordered arrangement wherein one parent has both legal and physical custody of the child. The noncustodial parent may have limited visitation, but likely has been determined to be unfit to parent for a given reason. Most custody arrangements are “joint custody,” which generally refers to a shared legal custody even if only one parent has physical custody.
Legal Custody
If a parent has legal custody of her child, it means she has the court-granted right to make important, long-term life decisions on behalf of the child. This includes choice of schools, religious education, health care, discipline, and other areas of life. Both parents are granted legal custody of their children in the majority of child custody cases, unless one parent is determined to be incapable of making such decisions. When only one parent has legal custody, it is called “sole legal custody.” Even if the noncustodial parent has visitation rights, he or she may not make important long-term decisions involving the child. If both parents have joint legal custody, then intentionally excluding the other parent in the decision-making process may be considered contempt of court.
Physical Custody
If you are divorced and your minor children live with you, then you have physical custody. Most courts tend to award one parent sole physical custody, while the noncustodial parent has visitation rights. Even when it is determined that the child needs to spend time with both parents in order to thrive, courts are increasingly reluctant to award joint physical custody because of the disruptions it causes children. The most common arrangement is one in which one parent has sole physical custody, both parents have legal custody, and the noncustodial parent is granted visitation time. Visitation is usually worked out between the two parents, since it typically involves detailed logistics and may require occasional trade-offs and last-minute changes. A parent with visitation rights usually spends every-other weekend, certain holidays, and summer vacations with their child.
Child Support
In every state, both legal parents are required to support their children, regardless of whether they were married when the child was born. When it comes to supporting a child financially, if parental incomes are unequal or if one parent is shouldering most of the costs of taking care of the child the family law court will order the noncustodial parent to contribute a specified sum of money to the costs of childrearing (called child support), often by referring to published guidelines establishing minimum levels of support. The family law court will retain the right to modify this amount should parental incomes or the needs of the children change. The amount of child support awarded will depend on how much each parent makes and spends on housing, health care, and other necessary child-related expenses, including dental bills and private school tuition. The monthly amount can vary widely, and each state has its own child support guidelines that are set by statute. If support isn’t paid voluntarily, the parent with custody or someone acting on the child’s behalf (such as the welfare department) can sue the noncustodial parent to obtain a court order setting the amount of child support the noncustodial parent must pay. If the father doesn’t pay, but has the ability to do so, the district attorney can prosecute him under criminal laws. County jails are full of fathers who don’t take their support obligations seriously.
Legal Rights of Non-legal Parents
Where only one person in an unmarried couple is the legal parent (for example, you came along after your partner’s child was born and did not adopt the child), the legal situation is very different. In most states, the non-legal parent has few legal rights, and in a few states, none at all. This is usually true even if the non-legal parent has helped raise the child for many years and is a primary giver of care and emotional support. Fortunately, an increasing number of states are beginning to recognize the right of non-legal parents to visit the children they have helped raise; Ohio, Virginia, and Wyoming allow “any interested person” to bring an action for visitation, and Arizona allows visitation to persons who act as parents to a child. A few courts have even awarded custody to the nonlegal parent, especially where that person was the primary caregiver. And when the natural parent is unfit or deceased, it is more likely for courts to give the nonlegal parent a major child-rearing role (and sometimes to prefer the nonlegal parent to grandparents or other blood relatives). Because the law does not fully recognize their relationship with the child, nonlegal parents rarely have any financial obligations to their partner’s children.
And where a nonlegal parent offers to help support the children in exchange for visitation or custody rights, most courts say no. In some states, second-parent adoption may be available even if you and your partner are not living together any more. If the legal parent is willing to formalize the nonlegal parent’s relationship with the child, consult a lawyer about whether a second-parent adoption is a possibility. If it is, you can incorporate a paragraph to the effect that you intend to complete a second-parent adoption into the sample parenting agreement included here. If you are being denied the right to continue actively participating in the life of a child you have helped raise, your first step should be to attempt to work with the legal parent to create a practical arrangement that meets the child’s needs as well as yours. Failing this, you will need to consider whether it makes sense to attempt to achieve your goals by going to court. But before you do, you’ll want to do the necessary legal research in your state or consult a family law attorney to see if your state allows you to present a claim for visitation or partial custody if you are not a legal parent, and what procedures you must follow. If you are the legal parent and you are facing a custody and visitation challenge from your former partner, make your children’s emotional needs not yours the highest priority. If your children want to remain in close contact with your ex (who they may have lived with for many years), put their wishes before your own. Of course, if you truly believe that your former partner’s interaction with your kids will be seriously harmful, by all means resist his or her claims for custody or visitation.
Parenting Agreements for Children of Unmarried Couples
Because unmarried couples don’t get divorces, judges and lawyers aren’t necessarily involved in the child raising issues. Unmarried couples can make their own parenting agreements covering child support, custody, and visitation issues, either on their own or with the help of a mediator or family law counselor. If it’s possible, this is the best approach. Be mindful, however, that if the physical or financial well-being of your child is at risk, most courts will not consider themselves bound by your agreement, and may order modifications or additional obligations. Also, if court proceedings are likely, you’re unclear about your rights, or there’s conflict between you and the other parent over key issues involving your child, consult an experienced family law attorney. It’s a good idea to approach your agreement with a spirit of flexibility and openness. Also, no custody, support, or visitation agreement even one ordered by a judge is ever permanently binding. An amount of child support that seems fair and adequate today may not be enough tomorrow. Custody with one parent may work brilliantly for a year and then sour. Your agreement must be a statement of needs and expectations that lay a solid foundation for the changes and additions that will surely come.
Included here are examples of two parenting agreements you can use as models to write your own:
• •Parenting Agreement (Both Parents Are Legal Parents), and
• Parenting Agreement (Only One Parent Is a Legal Parent).
Be sure you both date and sign any agreement you reach and each keeps a copy. It’s a good idea to have your signed agreement notarized if you anticipate any future need (in court or arbitration) to prove that the signatures on the agreement are not forged. Factors a Judge May Consider in
Deciding Custody
All states use a “best interest of the child” standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges’ subjective beliefs about what’s best for children. There are some factors, though, that you can expect a judge to consider.
• Age of the children: Although the tender years doctrine has long been officially out of fashion, some judges still believe that younger children should live with their mothers, especially if the mother has been the primary caregiver. (Certainly, a nursing baby will do so.)
• Each parent’s living situation: Sometimes, the parent who stays in the family home is granted custody of the children because it allows the children stability and continuity in their daily lives. Sometimes, the parent with custody is awarded the family home, for the same reason. If you are crashing in your best friend’s guest room while you get back on your feet after the divorce, don’t expect to get primary custody of your kids. If you truly want to spend a significant amount of time with your children, make sure your living situation reflects that. The proximity of your home to your spouse’s may also factor in to the judge’s decision. The closer you are, the more likely the judge will order a time-sharing plan that gives both parents significant time with the kids. The location of their school and their social and sports activities may also matter.
• Each parent’s willingness to support the other’s relationship with the children: The judge will look at your record of cooperating or not with your spouse about your parenting schedule. The judge might also want to know things like whether you bad-mouth your spouse in front of the kids or interfere with visitation in any way. The more cooperative parent is going to have an edge in a custody dispute and a parent who’s obviously trying to alienate a child from the other parent will learn the hard way that courts don’t look kindly on that type of interference.
• Each parent’s relationship with the children before the divorce: It sometimes happens that parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended. In many cases, this desire is sincere, and a judge will respect it, especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate a parent’s change of heart and ensure that the custody request isn’t being made primarily to win out over the other parent.
• Children’s preferences: If children are old enough usually, older than 12 or so a judge may talk to them to find out their preferences about custody and visitation. Some states require courts to consider kids’ views, but others disapprove of bringing the kids into it at all. The judge also may learn about the children’s preferences from a custody evaluator.
• Continuity and stability: When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.
• Abuse or neglect: Obviously, if there’s clear evidence that either parent has abused or neglected the children, a judge will limit that parent’s contact with the children. Every situation is different, so the judge may consider other factors in deciding custody in your case.
Lawyer For Utah Code 78A-6-509
When you need a lawyer to help you with child custody in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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