Timesharing like physical custody refers to how following a divorce, a court allocates the time children spend with each of their parents. Custody and timesharing are often the most contested issues in a divorce. Utah no longer recognizes the term custody. Instead the terms timesharing and parental responsibility (link to rights and responsibility page) are the terms used to describe the legal relationship between a child and his or her parent.
Often, parents will agree upon a time sharing schedule on their own. However, if the parents cannot agree, the court will order a time sharing schedule based upon the best interests of the child. The court makes this determination by evaluating a number of factors meant to take into consideration “the wellness and interests of the particular minor child and the circumstances of that family.”
Both parents will have time sharing with the child unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence creates a rebuttable presumption of detriment to the child. This is unusual and parents can still be entitled to “supervised time sharing,” even if they are not awarded traditional time sharing.
There are three main types of time sharing that we will explore below: (1) Majority Time Sharing, (2) Equal Time Sharing and (3) Supervised Time Sharing.
Majority Time Sharing
A majority time sharing arrangement refers to when one parent has a majority of overnights (50.1% or more) with the child during the year. The parent with the majority of overnights is commonly referred to as the primary residential parent. For example, if throughout the year, the child stays with the mother for 4 nights every week, but with the father every weekend, then the mother has majority time sharing.
Equal Time Sharing
An equal time sharing arrangement refers to a scenario where both parents have an equal number of overnights during the year. An example of this would be if the child alternates which parent they stay with every other week. This is generally less common than a majority time sharing arrangement.
Supervised Time Sharing
In rare and extreme cases, when there are allegations or prior instances of family violence, child abuse, neglect, untreated severe mental health disorders, drug abuse or alcohol dependence, a judge may decide that a third person should be present for any visits between a parent and child. This arrangement is referred to as supervised time sharing.
The court can order supervised visitation by family members/friends or via formal supervised visitation programs. When it is a formal supervised situation, these third parties are often social workers or other qualified professionals who monitor the physical and emotional well-being of the child during visitation. In most cases, the supervisor will sit quietly through the visit while taking notes. The monitor will only interrupt the visit if it becomes necessary to protect the safety of the child or the parent.
Normally, supervised visitation and the manner in which it is to occur is court ordered. However, if there is an agreement, the parents may choose which family member, friend, provider or agency will facilitate the supervised visitation. The cost associated with the utilization of these services is not borne by the court or any other government agency. Thus, the parent seeking visitation normally must assume the costs unless the parents come to some other arrangement. Additionally, the time sharing agreement will likely contain restrictions on communication with the child outside of the visitation and transportation restrictions with the child during the visit.
Before a divorce can be finalized for parents with a minor or dependent child, a Parenting Plan must be created to govern the time sharing and parental responsibility agreements between the parents. The Parenting Plan will transcribe in specific detail the rights, responsibilities, time sharing schedule, and decision making ability for each parent. Parenting Plans are designed to anticipate any issues that could arise with the child and avoid any future conflicts between the parents. Parents are encouraged to agree to and formulate their own Parenting Plan. However, if the parents cannot agree to a Parenting Plan or if the court will not approve their plan, a Parenting Plan will be created by the court.
Parents are encouraged to agree to and formulate their own Parenting Plan.
At a Minimum, What Must a Parenting Plan Include?
• How the parties will share and be responsible for the daily tasks associated with the upbringing of the child(ren).
• The time-sharing schedule arrangements that specify the time that the minor child(ren) will spend with each parent.
• A designation of who will be responsible for any and all forms of health care, school-related matters, including the address to be used for school-boundary determination and registration, other activities.
• The methods and technologies that the parents will use to communicate with the child(ren).
What Does a Normal Parenting Plan Typically Include?
Parents- The plan must include the name, address, phone number, and email of each parent.
Children- The plan must include the name and birthday of all children born to or adopted by the parties.
Parental Responsibility- The plan will dictate whether the parents should have shared parental responsibility over every major decision, whether one parent should have final decision making ability if the parents are unable to come to a decision, or whether one parent should have the authority to make every major decision for the child.
Extra-curricular Activities- The plan will dictate whether either parent may register the child (ren) for extra-curricular activities or whether the parents must mutually agree on all extracurricular activities. Additionally, the plan will state whether the parent with the child (ren) will transport them from all mutually agreed upon activities. Lastly, the plan will state what percentage of costs each parent will pay for extracurricular activities and equipment.
School Calendar- The plan will include the date on which both parents should obtain a copy of the upcoming year’s school calendar. Additionally, the plan will dictate which child, county, or school’s calendar to follow.
Schedule Changes-The plan may include the date by which a parent requesting a change to their time sharing is required to make. Additionally, a plan may dictate whether the parent requesting a change of schedule will be responsible for any additional child care, or transportation costs caused by the change.
Time Sharing Schedule-The plan will dictate the time sharing agreement for both parents in specific detail for weekdays and weekends. Additionally, the plan will transcribe in yearly detail which holidays the child (ren) will spend with each parent. Furthermore, the plan will transcribe the time sharing schedule for the child (ren)’s winter, summer, and spring breaks. It will detail whether one parent will have the child (ren) for the entire break, whether the child (ren) will split time between parents, or if the normal time sharing schedule will continue as usual. Lastly, the plan will list the number of nights each parent will have with the child (ren) per year.
Transportation- The plan will transcribe whether only one parent shall provide all transportation, whether the parent beginning their time sharing shall provide transportation, or whether the parent ending their time sharing shall provide transportation for the child(ren). Additionally, the plan dictates what percentage of transportation costs each parent will pay.
Exchange of Child (ren)- The plan will explain that both parents shall have the child(ren) ready on time with sufficient clothes packed and at the agreed upon time of exchange. The plan dictates that if a parent is late past a certain minute limitation without contacting the other parent to make other arrangement, the parent with the child (ren) may proceed with other plans and activities. Additionally, the plan shall describe where the exchange shall take place.
Foreign and Out of State Travel-The plan will lay out whether either parent may travel within the U.S. with the child(ren) during their time sharing and how many days’ notice prior to the trip, the parent will be required to give notice. Additionally, the plan will detail whether either parent may travel out of the country with the child (ren) during their time sharing and how many days prior to traveling they will be required to provide a detailed itinerary of the trip to the other parent.
Education-The plan will transcribe which parent’s address shall be designated for school boundary determination. If applicable, the plan will detail any other provisions regarding private or home schooling.
Are your Children at Risk?
In contested cases, it is not unusual for the following scenarios:
• One parent is attempting to poison the children against the other parent. This is referred to as parental alienation (link to parental alienation page). The alienating parent often times suffers from a narcissistic personality disorder and tend to put the children in the middle of the parents’ dispute
• One parent does not allow the other parent access to the children. Timesharing and visitation are done on “their terms.” This is also a classic example of parental alienation
• One parent will fight for more custody or timesharing just to have more child support
• One parent will make false allegations of sexual or domestic abuse against the other parent
• One parent will use another parent’s employment and work commitments as a reason as to why the parent is unfit.
What are the Best Interest Factors that the Court Considers?
The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
The moral fitness of the parents.
The mental and physical health of the parents.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule. *This factor is a catch all, in which the court may consider anything else that it deems to be relevant to child’s best interests.
What Other Methods May the Court Use to Determine Time Sharing?
When parents are unable to agree on a time sharing schedule, the court may order a social investigation by a mental health professional to help guide its determination about the child’s best interests. The purpose of the study is to better provide the court with relevant information about the child and parental situation that may not have otherwise been revealed in court. Additionally, to determine the best interest of the child, the court may appoint a Guardian Ad Litem (GAL) to act as “next friend of the child, investigator, or evaluator, but not as attorney or advocate.” The GAL is endowed by the court with the “necessary powers, privileges, and responsibilities” to promote the child’s best interests. This includes the power to investigate the allegations affecting the child and interview the child, witnesses, or other persons with relevant information about their welfare.
The Importance of Determining Parental Responsibility
Parental responsibility under Utah law dictates how important decisions will be made on behalf of the child, such as those decisions relating to the child’s educational, medical, and religious needs. Courts prefer to give shared parental responsibility among both parents so that they both play a role in making such decisions, but courts can also award sole parental responsibility to one parent.
As with time sharing plans, courts will approve parental responsibility arrangements that the parents voluntarily reach on their own (which often occurs with the assistance of attorneys in negotiating such arrangements), but will create and impose its own arrangement based on the best interests of the child when the parents cannot agree. Courts will generally award shared parental responsibility unless one parent is unable to provide fit guidance in a child’s life, for reasons such as not being present in the child’s life, a history of domestic violence, or drug and alcohol issues. In such cases, sole parental responsibility may be ordered.
Why Is It Important To Have A Time-Sharing Schedule?
When the estranged parents do not agree on the amount of time (if any) the other parent should have with the child, a set-schedule will be very helpful. Note that it’s imperative to petition the courts for a court order that details exactly when each parent is able to have custody of the child. By doing this, both parents are bound to the agreement.
What To Expect When Both Parents Do Not Agree To The Parameters Of Time-Sharing
Let’s face it, when a separation becomes muddled, parents tend to shuffle the kids around. Ultimately when entering the court system regarding this type of case, you will have to accept the court’s ruling. If there is still unease as to the schedule for custody, you can submit a supplemental petition. Although, in most cases, there will have to be a change in circumstances to have your motive determined.
How Is Time-Sharing Calculated?
Each parent’s work schedule, availability, and financial situation will determine time-sharing (child custody). The court will base it’s decision on what arrangement will create a stable and healthy environment for the child. If both parents have similar lifestyles (work schedule, pay scale, etc), then time-sharing will be similar as well. For example, in a 50/50 split, the agreement will often not include child support. If the majority of the custody is given to one parent, then there will be an increase in the amount of child support the non-custodial parent will have to contribute. When dealing with time-sharing, remember that the child comes first.
Free Initial Consultation with Lawyer
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!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Ascent Law St. George Utah Office
Ascent Law Ogden Utah Office
— Tim Cella (@TimCella2) October 14, 2022