If you’re a parent going through a divorce, a judge will need to decide how you’ll share parenting time with your ex and who will make decisions about your kids. Many divorcing parents are able to reach their own custody settlement agreements without going to court. When parents can’t agree, a judge may order a custody evaluation to help assess what is in the child’s best interests.
A child custody evaluation is a report put together by a custody evaluator. It summarizes the evaluator’s findings and recommends why one parent should get custody over the other. Custody evaluators are trained mental health professionals and usually have experience as a child therapist or psychologist.
The custody evaluation process can take a few weeks to complete. Your evaluator will want to gather information and meet with you and your children individually to make sure a child isn’t being unfairly pressured by a parent to say certain things.
When Will You Need a Custody Evaluation?
If you can’t reach a custody agreement with your spouse after trying mediation, a judge may order a custody evaluation. Parents can request a custody evaluation even if a judge doesn’t. Custody evaluations are usually appropriate in cases where the parents can’t agree on custody or where one parent is claiming that the other parent is “unfit.” A custody evaluator can get to the bottom of the parents’ claims and help a court determine what kind of arrangement is in the child’s best interests.
Choosing the Evaluator
A judge might assign a specific custody evaluator to your case, or you and your spouse can pick an evaluator yourselves. In many cases, your lawyer might be able to recommend a good custody evaluator for your divorce.
Whether you’re choosing an evaluator yourself or picking from some options given to you by the judge, you should ask your lawyer for information about the evaluator. For example, your lawyer might be able to tell you about past experiences with the evaluator or the evaluator’s history of recommending custody to mothers over fathers. You can also ask your lawyer about the evaluator’s ability to handle unique cases, such as evaluating custody for a child with special medical needs. You shouldn’t question the evaluator directly because you don’t want to do anything that might negatively affect the evaluator’s impression of you.
If you and your ex-spouse agree to a custody evaluation but you can’t agree on the evaluator, you can each hire your own evaluators. But before you hire your own evaluator, you might want to consider the costs. If the court orders the evaluation and you use the county’s evaluator, you’ll likely pay a lower hourly rate than if you hire a private evaluator. While a county custody evaluation will probably cost between $1,000 and $2,500, you might end up paying as much as $15,000 or more for a private evaluation.
The Evaluation Process
Many evaluators use psychological testing for both children and parents. Some evaluators do the testing themselves; some might send you to another professional for testing. In addition to testing, a custody evaluator will interview the child (ren) and the parents, as well as any teachers, babysitters, family friends, and extended family members. The evaluator might also examine health records, school report cards, and attendance records. Once all the evidence is gathered and reviewed, the evaluator will recommend to the court that either the parents share joint custody or one parent should receive primary physical and legal custody. A judge doesn’t have to follow a custody evaluator’s recommendation. However, a custody evaluation done by a trained evaluator will carry a lot of weight in your case.
The Report
The custody evaluator will submit the report to you, your spouse, and the court at the same time. The report might make recommendations about the following:
• custody, visitation, and time-sharing
• recommendations for family or individual therapy
• how to deal with family conflicts in the future, and
• the effects of a parent’s individual issues, like substance abuse or mental health issues.
Additionally, your custody evaluation report might recommend a reevaluation for a specific time in the future, especially if your children are very young.
Can You Contest Findings in an Evaluation Report?
If anything happens in the evaluation process that concerns you—for example, the evaluator appears to have a strong bias in favor of your spouse or asks questions you think are inappropriate—talk to your lawyer immediately, before the report is submitted. A judge might not take your concerns seriously if they’re raised after the report.
After you get the custody evaluator’s recommendation, you should discuss it with your lawyer. If the recommendation is acceptable to you, you’re probably better off agreeing to the recommended course of action and giving up your day in court, where you might end up getting less. However, if the evaluation is unfavorable to you, you should discuss with your attorney how to contest it in court. A judge doesn’t have to follow the custody evaluator’s recommendation, especially if you can show it was biased or doesn’t serve your child’s best interests.
What Factors Can Affect Custody?
While there is no set formula for what factors count and how much weight each has, there are some fundamental questions that the court will take into consideration when determining which parent should be awarded primary physical custody. Some of the factors the court may use for a custody determination include:
• Who transports the child to and from school, daycare, or activities?
• Who takes care of the child’s primary needs such as feeding, bathing, dressing?
• Who stays at home when the child is ill or away from school?
• Who schedules and takes the child to appointments?
• Who helps the child with school and extracurricular activities?
• Who disciplines the child and monitors their behavior?
Types of Child Custody in Utah
While custody cases are rarely cut and dried, there four primary categories that a child custody ruling could fall into. When making the decisions, the court is tasked with choosing a custody agreement that will serve the best interests of the children involved.
Joint Legal Joint Physical Custody
This type of custody is most common in child custody cases where both parents live in the same general area and are more common in cases of amicable divorce where both the parents want the children to reside with them. This type of custody involves parents sharing physical custody which means that each parent will have the children for at least 111 days each year. They will also share in the decision making process in regards to the children such as medical treatment, educational goals, and additional activities the children will participate in.
Joint Legal Sole Physical Custody
In this type of custody arrangement, both parents will be involved in making decisions in regards to any legal issue associated with the children such as educational and medical decisions. Unlike joint physical and legal custody, the children will reside with one primary parent on a full-time basis. The other parent will often receive a set visitation, or parent-time schedule to spend time with the children. This type of custody is more common when one or both parents work, when the parents live farther apart, or when the children would benefit from a more set daily schedule.
Sole Legal Sole Physical Custody
In sole legal and physical custody arrangements, one parent will have the children living with them full-time or at least 255 overnights a year, and the other parent will be entitled to visitation. Visitation is usually set to at least a minimum of 86 overnights per year. This usually includes a mix of weekends, holidays, and school breaks. With sole legal custody, the parent who was awarded sole physical custody will have the right to make all necessary decisions for the child on their own. While the primary parent does not have to seek consent for their decision from the non-custodial parent, they must share the information as the other parent has the right to know. This type of custody arrangement is not very often used and is primarily reserved for cases where one of the parents is perceived by the court as unfit or unable to care for the children.
Split Custody
Split custody is an infrequent occurrence in the judicial system and occurs when two or more children in the household are split up between parents. In this situation, each parent would receive sole and physical custody of one of the children. This type of custody is used when the court deems that it is in the best interest of the children to live separately each with a different parent. These cases can occur in such instances as siblings that do not get along, a child who has a lot of anger against one parent, or a child who have mental health issues that make separation a better option.
Utah Child Custody Laws
When a couple with children breaks up, the responsibility to care for the children must be shared by both parents. An important aspect is child custody or with whom the child will live with and what visitation with the other parent will be like. Another part of this responsibility is financial support, in the form of child support. Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.”
The factors considered by the judge include:
• Past conduct and demonstrated moral standards of the parties
• Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
• Bonding between each parent and the child
• If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
• Physical, psychological, and emotional needs of the child
• Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
• If both parents participated in raising the child before the divorce
• The geographic proximity of the parents’ homes
• The child’s preferences
• Parents ability to protect child from their conflict
• Past and present ability to cooperate with each other in parenting and making decisions
• Any history of child abuse, domestic violence, or kidnapping
• Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
• How parent-time would negative impact child’s physical health and emotional development
• Distance between child’s home and the non-custodial parent’s home
• Allegations of child abuse
• Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
• Financial inability of non-custodial parent to provide food and shelter during parent-time
• Child’s preference, if sufficiently mature
• Parent’s incarceration
• Shared interests of the child and non-custodial parent
• Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
• Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
• Chronic pattern of missing, canceling or denying regularly scheduled parenting time
• Parent-time schedule of siblings
• Lack of reasonable alternatives for nursing child
• Any other criteria the court feels is relevant to the best interests of the child
How Child Custody Decisions Are Made
There are several important issues whenever child custody rights are determined. If you’re going through a divorce, you’ll want to know whether your child will live primarily with you, and if not, whether you’ll be able to make important decisions as to how your child will be raised. If you’re a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.
For parents and others without a lot of experience with the child custody system and family court, they may question: How are child custody decisions made? The following is a brief discussion about making child custody decisions.
Divorce and Child Custody Decisions
If you’re a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved. In general, child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court.
More specifically, custody and visitation decisions typically are resolved in one of two main ways in a divorce:
• The parents reach an agreement on child custody and visitation, as a result of informal settlement negotiations (usually with the help of attorneys) or out-of-court alternative dispute resolution proceedings like mediation or “collaborative law” (usually with the help of attorneys).
• The court makes a decision on child custody and visitation (usually a family court judge).
Unmarried Parents and Child Custody Decisions
The rights of unmarried parents in child custody may depend on if both are legally recognized as the parents of the child. If the parents are not married, the parents may have to acknowledge the father’s paternity. If the father’s paternity is not voluntarily acknowledged, the court may have to establish paternity with a DNA test.
Generally, both parents have a legal right to be part of their child’s life. This includes making parenting decisions for important issues like education, health care, and religion. It is generally best for everyone if the parents can agree to a child custody and visitation arrangement out-of-court. This allows the parents to work out an agreement that works best for them, without relying on a judge to come up with the agreement. If the parents can’t agree or mediation does not work, the case will have to be decided by a family court judge.
The court may prefer to give both parents shared custody but, in some cases, primary custody of one parent with visitation rights by the other may be in the best interests of the child. The court may use several factors for making child custody decisions, including:
• Stability and continuity of the child’s home life, education, and community life
• Availability of extended family
• History of abuse
• Child’s preference (usually given more weight with older children)
• The child’s physical, emotional, developmental, educational, and special needs
Ultimately, the court will base its decision on what it believes best serves the child’s best interests.
Non-Parental Child Custody Decisions
Other relatives or important people in the child’s life may also have an interest in making sure the child is well cared for. Non-parents who may want to take custody of a child may include stepparents, grandparents, or other family relatives, particularly if they have been the child’s caretakers. In some cases, relatives or other individuals or agencies may file for custody rights of a minor child. This generally requires showing the child is in danger or the parent is unfit or has abandoned the child. If a non-parent files for custody, the court will decide if the parents are unfit or whether the non-parents can take temporary custody.
Stepparents generally do not have legal rights (or responsibilities) over the child of their spouse. For a stepparent to have custody and visitation rights for the child, the stepparent would have to adopt the child. This generally requires having one of the parents give up their parental rights so the child could be adopted. In some states, grandparents may be granted visitation rights.
Contact Child Custody Attorney Ascent Law Firm in Utah
Divorce and child custody proceedings can be both legally and emotionally complicated. If you need help navigating through the Utah child custody legal process, contact Ascent Law Firm Attorneys today.
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