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Utah Divorce Code 30-3-10.2

Utah Divorce Code 30-3-10-2

30-3-10.2. Joint custody order – Factors for court determination – Public assistance.

• The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.
• In determining whether the best interest of a child will be served by ordering joint legal or physical custody, the court shall consider the following factors:

 whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
 the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
 whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
 whether both parents participated in raising the child before the divorce;
 the geographical proximity of the homes of the parents;
 the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
 the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
 the past and present ability of the parents to cooperate with each other and make decisions jointly;
 any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
 any other factors the court finds relevant.
• The determination of the best interest of the child shall be by a preponderance of the evidence.
• The court shall inform both parties that an order for joint physical custody may preclude eligibility for cash assistance provided under Title 35A, Chapter 3, Employment Support Act.
• The court may order that where possible the parties attempt to settle future disputes by a dispute resolution method before seeking enforcement or modification of the terms and conditions of the order of joint legal custody or joint physical custody through litigation, except in emergency situations requiring ex parte orders to protect the child.

Legal Custody

Legal custody of a child means one parent has the right to make all decisions concerning their child’s upbringing. Joint legal custody means both parents have an equal, legal right when making decisions concerning their child’s upbringing. Children generally do better if both parents are significantly involved in their lives. If you and the other parent can make joint physical custody work, it will benefit your child. If you have legal custody of your child, you can make all decisions regarding issues such as schooling, religion, medical care, and housing. With legal custody, you do not have to take into consideration the wishes or opinions of the other parent regarding your child’s upbringing. The term “custody” refers to the legal and physical custody of a child. Legal custody is the authority to make decisions for and on a child.

Joint Legal Custody

Joint legal custody (also called shared legal custody, shared parental responsibility, etc.) is when parents share that authority. The alternative is sole legal custody, where one parent has full responsibility to make major decisions for the child. You need to specify in your parenting plan which legal custody option your family will use. This determines who makes decisions about your children’s education, medical care, religion and more.

Basics of joint legal custody

You can have joint legal custody with sole physical custody or joint physical custody, which determine who your child lives with. Joint legal custody is a way to give both parents a say in their child’s upbringing. It is meant for cases in which both parents are able and available to make important decisions. In many states, it is the default option or is at least preferred over sole legal custody. In these states, sole legal custody is awarded when joint legal custody isn’t in the best interest of the child.

How to File for Child Custody in Utah

Every child custody case begins with a petition that is filed with the Court. For married parents a “Petition for Divorce” will be filed and for unmarried parents a “Petition for Paternity” or a “Petition for Custody, Visitation, and Support” will be filed. The requirements for each Petition are a bit different, but any time the Court is determining custody the judge will make a decision based on the “best interests” of the children.

Filing Your Petition for Custody in the Right Court

There are a number of requirements that have to be met before a Utah Court can make a decision as to a parent’s custody and visitation rights. There are various exceptions and other lesser-known rules that may apply to your individual case and your attorney can help you sort through those if they’re applicable, but for most cases where your children have been living in Utah for the past 6 months the following general rules will apply:
• If you’re married and filing a Petition for Divorce, you must file your petition in the county courthouse where you or your spouse have resided for the last three months.
• If you’re not married and you’re filing a petition to establish paternity over your child, you must file your petition in the county courthouse where the child resides.

Requirements When Filing for Joint Child Custody

Whenever you file for any type of joint custody (joint legal or joint physical custody) you must file a “parenting plan.” Failure to file a parenting plan can potentially be devastating. This is so because many custody battles end up in a temporary orders hearing where the court will implement a temporary parent-time schedule. If you are asking for joint physical custody, and the other parent has the children a majority of the time, and you have not filed a parenting plan, the court cannot technically award you joint physical custody. This would mean the court would award the other parent with primary physical custody, you would have less time with your children, your child support amount would be higher, and your case for permanent joint custody could be weakened. Getting deserved custody and parent-time with your children as fast as possible is paramount for any concerned parent. Because of this, you must be sure that you start your case out on the right foot. Making even basic errors can cause serious delay in getting the court to intervene and give you court orders protecting your custodial rights.

What does it Cost to File for Custody in Utah?

The filing fee for a child custody case in Utah is $318. There are also costs associated with service. See, once you file your initial custody documents with the Court, you have to have someone serve your soon-to-be ex with those documents. The Utah Rules of Civil Procedure specify you can’t do that personally (too much room for monkey business), so you should have a professional process server do it. That might be a constable with the sheriff’s office, or a company that serves these sorts of documents regularly. Either way the cost will likely range from $15 to $30. All told, the cost to file and serve a custody case averages around $400.

Changing a Utah Custody Order

Situations arise and circumstances sometimes change long after a child custody order has been issued by the court as part of a divorce decree. When the situation has changed substantially, it may be necessary for one or both parents affected by a custody order to seek a change. Courts recognize that life circumstances can change, thus necessitating the ability of a parent to seek a modification of an earlier order. If the original child custody order was issued by a court in Utah, people may file a motion to modify the child custody order by filing a motion with that court. Generally, the original issuing court will retain jurisdiction over the matter. If the requested modification is uncontested, the parents may file a stipulated motion with the court together. Courts generally will approve such stipulations as long as they are in the child’s best interests. If one parent wishes to modify custody and the other has an objection, the parent wishing the change may file a motion to modify with the court. He or she will then need to serve the motion, along with a summons and notice of the scheduled return date, on the other parent. An affidavit of service must then be filed with the court. This gives the other parent an opportunity to respond to the modification motion. While it is sometimes possible for parents to amicably arrive at a new custody agreement when a change is needed, this is not always the case. If it is contested, the court will hear evidence as presented from both parents regarding the reasons for the requested custody modification. If the court finds that the change is in the child’s best interests, the judge will then modify the child custody order. Until and unless an order is modified, parents must follow the existing order as it stands.

Explanation of Temporary Orders

Temporary Orders are just that: temporary orders made by the court to govern the parties until a case is finalized. Temporary Orders can address any issue in a divorce or child custody case, including:
• child custody,
• child support,
• alimony,
• parent-time,
• payment of debts,
• and possession of the marital home.
Once the Court hands down Temporary Orders, it does not usually modify them. Because of this, Temporary Orders are important, and we prepare for them accordingly. Usually, a party begins the Temporary Orders process by filing a Motion for Temporary Orders.

This Motion is accompanied by a Sworn Declaration (i.e., Affidavit). This Sworn Declaration, which is based on a person’s direct observation, and explains (1) the situation, and (2) why a party deserves what he or she is requesting in the Motion for Temporary Orders. The other party has an opportunity to respond and file a Counter-Motion for Temporary Orders. If a Response is filed, the other party has a final chance to reply before the Court holds a hearing. All parties also have the opportunity to provide the Court with documentary evidence, such as bank statements, parent-time calendars, and photographs. From the time a Motion for Temporary Orders is filed, it usually takes between four to six weeks schedule a hearing with the Court. The hearing in Court will be held before a Commissioner. A Commissioner is not quite a judge, but acts as a judge in family law cases. Usually, in a hearing regarding Temporary Orders, live testimony will not be taken. Instead, the attorneys will proffer evidence, which means the attorneys will stand up and argue. Really, the only time you would talk during a Temporary Orders hearing is if the Commissioner asks you a specific question.

The Commissioner will have read all pleadings before the hearing. Sometimes, the Court may require witnesses to attend Temporary Orders hearings. If so, we would need to subpoena those witnesses at least fourteen days before the hearing. There is a fee for subpoenaing witnesses that is paid directly to the witness. When all parties have made their arguments, the Commissioner will make Recommendations and ask an attorney to write down those Recommendations and provide them to the Court. Upon receiving the Recommendations, they will be forwarded to the Judge, who will sign them. If you believe the Commissioner made a mistake and made legally incorrect Recommendations, we can file an Objection with the Judge and ask that the Recommendations be overturned. Any Objection must be filed within fourteen days of the Commissioner’s Recommendations. If you wish to object, please let us know as soon as possible since it takes time to draft an objection to a Commissioner’s Recommendations. Quite often, the Court uses Temporary Orders to formalize what has already been happening in a case (i.e., the status quo). For example, if the parties have been sharing parent-time 50/50, the Court will usually formalize that 50/50 parent-time arrangement in Temporary Orders.

That noted, many times the Court will change the status quo based on the circumstances of the case. Alimony can also be addressed in Temporary Orders. Temporary alimony is based on the need of the party requesting alimony, and the ability of the other party to pay. Being ordered to pay temporary alimony does not necessarily mean alimony will continue after the divorce is finalized. Remember, these orders are temporary in nature. Likewise, child support can be addressed in Temporary Orders. In order to address alimony or child support, a Financial Declaration will need to be filed with the Court. If you have not already completed a Financial Declaration, please do that as soon as possible. Our goal is to have Financial Declarations filed at the beginning of the litigation process. If Financial Declarations are not filed in a timely manner, it may cause a delay in your case or preclude you from asking for child support and/or alimony.

Divorce Code In Utah

When you need legal help with the Utah Divorce Code, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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