If you’re going through a divorce and you have children, there’s no doubt that you’re overwhelmed with emotions and tasks. One of the most critical items on your to-do list must be to work with your spouse to create a parenting agreement that works for your family. Regardless of how you feel about each other, parents must communicate. After all, you’re going to be involved in each other’s lives for at least 18 years, and frankly, if you can’t bridge your communication gap, you’ve got a long way to go before you reach peace after the divorce. A parenting plan is a perfect way to negotiate the best arrangement for your family after your divorce. But, where do you start?
A parenting agreement (or parenting plan) is a written document that you and your ex-spouse create together to outline how you will handle the care of your children after your divorce. Creating an agreement helps both parents understand what the other expects of them and can alleviate conflict that often comes with separation.
Stability is essential for every child, and divorce has the power to upset even the most ridged schedule. A detailed parenting agreement can offset some of the negative effects of divorce by providing children with a predictable visitation schedule, thereby avoiding the constant question of “where will I be going today?”
You may have heard parenting plans also called custody agreements, co-parenting agreements, or a parenting time arrangement. No matter what you call it, you should consider creating one, even if your state doesn’t require it during the divorce.
What Should My Parenting Agreement Include?
Each state has its requirements for a parenting plan, and because every family is different, no parenting plan is the same. Most importantly, you must include details on how you will handle the following:
• child custody
• visitation for the noncustodial parent and the child
• pick-up and drop-off transportation
• medical care
• education requirements
• religious upbringing
• holidays, and
• child support and other financial issues.
Child Custody
There’s no doubt that custody is one of the most contentious and hot-button issues in divorces with children. But, if you can set aside your emotions about each other and put the children first, custody shouldn’t be too difficult. It’s most important to determine who will have physical custody of the children, meaning where the child will live most of the time and who will provide day-to-day care. If you can’t decide who should have physical custody, the court will decide for you using your state’s best interest factors. Keep in mind, the judge doesn’t know you or your family as you do, so it’s always best if both parents can work together to formulate the best plan for the children.
Visitation
Once you determine who will have physical custody, you’ll need to create a parenting time (or visitation) schedule for the non-custodial parent. In most cases, children will benefit from having a regular and continuous relationship with both parents, so if only the child lives primarily with one parent (the custodial parent), you must create a schedule that allows visitation between the child and the noncustodial parent. Typically, the child will visit the noncustodial parent on weekends, extended vacations from school (like summer and spring break) and will split holidays between both parents. The children are used to seeing both parents on a regular basis, so it’s essential to create a schedule that will minimize the disruption to the children after divorce. Your visitation agreement should also clearly lay out which parent is responsible for transportation during parenting time.
Legal Custody
In most states, the court will award both parents joint legal custody of the children. Legal custody will allow both parents to have an opinion on major decisions that impact your child’s life, including decisions about medical care, religious upbringing, and education. Your parenting agreement should explain whether legal custody is shared or sole (awarded to one parent) and what will happen in the event of a disagreement.
Child Support
There’s no doubt that child support can be a touchy subject. That said, the law is clear that your children are entitled to financial support from both parents, regardless of custody. Your parenting agreement should include details on which parent will pay child support and how much. You can ask your attorney to determine your child support obligation by inputting your information (and your ex-spouse’s income) into your state’s child support formula.
What Steps Should I Take to Create a Parenting Agreement?
The first step to developing your parenting plan is to open the lines of communication between you and your ex-spouse. You’re not going to get anywhere if neither of you is willing to negotiate and sacrifice for your child’s benefit. Try to put yourself in your child’s shoes. Traveling between two homes isn’t ideal, nor is it easy for children, especially those who are school-aged. Before you decide how you’ll handle custody and visitation, think of the best way to ensure your children get what they need from both parents.
If you hire an attorney, you should be honest about what you want and what you’re willing to sacrifice for your children. Be sure to provide any documents, including pay stubs, tax returns, and work schedules to your attorney promptly. If you participate in mediation, you should attend the session with an open mind, but more importantly, you should come prepared with your work and social schedule, your child’s schedule, and your ideal parenting plan arrangement. You’ll also need to provide any financial documents that the mediator requests.
Once you and your spouse agree on the terms of your parenting plan, you’ll need to present a signed copy to the court. Although most courts believe that parents know best, you’ll still need to get the judge’s signature for the agreement to become a valid, court order.
Be Sure Not to Violate the Court Order
Parenting agreements are legally-binding documents once the judge signs it, which means if you violate any provision, you’ll be subject to court fines or other penalties. If your arrangement no longer works for you, or you need to change the terms, you’ll need to follow your state’s procedure for modifying a court order.
Physical and Legal Custody in Utah
Parents can work out their own custody arrangements or go to Utah family court and have a judge decide their case. In either situation, a custody order must address both physical and legal custody and meets a child’s needs.
“Physical custody” is where the child lives. A parent with physical custody primarily lives with the child. Parents can share physical custody (called “joint physical custody”) or one parent may have “sole” or “primary” physical custody. Your custody order will dictate how much time each parent spends with the child. Parents with joint physical custody will spend substantial, but not necessarily equal amounts of time with the child. The parent who spends the most time with the child is typically designated as the “custodial parent”. The other parent is called the “noncustodial parent.”
“Legal custody” refers to a parent’s right to make major educational, medical, religious, legal, or cultural decisions on the child’s behalf. Like physical custody, parents can share legal custody or one parent may have sole decision-making power over the child. In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.
Establishing Visitation Schedules
Under Utah custody laws, your custody order must set forth a visitation schedule covering weekly, monthly, holiday, and summer visits. Both parents are entitled to regular time with their child and neither parent can prevent visits. Even in cases where a parent has struggled with substance abuse or physical violence, a judge may award that parent visitation usually supervised.
A noncustodial parent without joint custody is entitled to minimum visitation under Utah’s custody laws. Generally, this equates to one weeknight per week with the child and overnight visits every other weekend. A judge can award a parent additional visitation time, but not less. The Utah Courts website provides more information on child custody and parent-time in Utah.
In limited circumstances where a child’s safety and well-being at issue, a judge may grant one parent only supervised visits. Supervised visits take place at a designated location or agency. A parent will be required to have his or her visits supervised until a judge can be sure a child is safe in that parent’s care.
Best Interests of the Child Factors in Utah
Utah courts decide child custody whenever parents can’t come to an agreement on their own. Yet even in cases where parents agree on custody and visitation, a judge will review a custody agreement to ensure it serves a child’s best interests. Utah family courts must consider several factors when deciding child custody in Utah, including:
• the child’s physical and emotional needs
• the child’s relationship with each parent
• the distance between the parents’ residences
• each parent’s physical and mental health
• the child’s ties to the community, sibling relationships, and relationships with extended family members
• each parent’s willingness to encourage a relationship between the child and the other parent
• either parent’s history of domestic violence
• the child’s preference if of a sufficient age and maturity, and
• any other factor the court deems relevant to custody.
When Will the Utah Family Court Consider a Child’s Preference?
A child’s preference is one of several factors a judge will weigh in a Utah custody case. The child’s age and maturity matters. Specifically, a judge will give more weight to an older child’s preference, such as a child over 14. Generally, a judge won’t give much consideration to a child’s wishes if the child is under 10. In one Utah family court case, an 11-year old boy stated a preference to live with his father, but the judge said that an 11-year old shouldn’t have control over where he lives.
Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision.
On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.
Keep in mind that even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent. Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.
Do Children Have to Testify About Their Custodial Preferences in Court?
In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires. Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.
Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.
When Can I Modify Child Custody in Utah?
Life is full of changes, and after a few years your custody order may need an adjustment. Utah custody laws allow either parent to file a custody modification request if there’s been a material change in circumstances affecting the child or parents or more than 3 years have passed since entry of the previous custody order. In either situation, the parent requesting a custody change must show that the modification would serve the child’s best interests.
When considering whether a modification is appropriate, a judge will consider the same best interests factors as listed above. A judge will hold a court hearing to consider all the evidence. A child’s needs not a parent’s wishes—will determine the outcome of your case. For example, a parent’s desire to relocate for a new job might not be enough to justify a change in custody. However, a custodial parents’ medical crisis might warrant switching custody to the other parent.
Do I Need an Attorney?
You can develop a parenting agreement with your spouse, and once you put the terms in writing, you can submit it to the court. Or, if you can’t resolve all the issues on your own, you can participate in mediation, which is where a neutral third-party will help you solve your conflicts in a confidential environment. If you aren’t sure that mediation is for you, and you can’t negotiate an agreement on your own, it would be best for each of you to hire an attorney.
Keep in mind, even if you and your spouse agree on all the terms in your agreement, it would be smart for each of you to have an attorney review it before you sign.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
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