You or the Judge?
You and your spouse should be able to resolve the issues of custody and visitation privately or through mediation or collaborative programs. But if you can’t reach an agreement on your own or through one of these resources, the only alternative is to have a judge make the decisions for you.
The judge is given one test to apply: What is in the best interest of the child? The best interests of the parents are irrelevant.
Take the case of a mother who has primary custody of a child and plans to remarry a man who lives 1,000 miles away. She wants to take the child and move to be with her new husband. The child’s father protests that his weekend visits with the child would be impossible. If the move is allowed, the child will have to change schools, lose friends, and see the father only irregularly. Situations like this have become more frequent in recent years as our society becomes more mobile and employers transfer their employees around the world.
Be aware that when you take child issues to court, you are turning over complete control of major elements of their future to a judge who doesn’t know you or your children. In most cases, the judge has had little or no training in child development or psychology.
And also bear in mind that any agreement that brings goodwill for people who will always be part of your family is miles ahead of something a judge imposes. As your child grows and changes, it will be much simpler to modify an agreement that the parents are able to reach on their own.
For example, you may want to take your children on a special extended vacation someday. It will be much easier to arrange if there is a history of agreements of this type between you and your ex. But without an agreement, the matter must be settled by a judge. And that will involve legal maneuvering, including preparing documents that will get you on the court calendar, gathering evidence supporting your request, and appearing at a hearing in court. Attorney fees for such a matter will normally exceed $2,500.
Mediating the Issues
One of the prime benefits of using methods other than court to resolve parenting issues is that they promote more realistic custody plans. There are some mediators who specialize in doing this as part of the divorce procedure.
Experts disagree over whether children should participate in the custody phases of divorce mediation. Of course, the maturity and temperament of a child will control the answer in many cases. Discuss this subject with your mediator, who may have some standard practice for dealing with it. Obviously, children should not be burdened with decisions that should be decided by their parents. But discussing various custody and visitation schedules with children who are sufficiently mature may help avoid problems that could sabotage a plan for reasons parents might not anticipate.
Even if the children don’t participate in the actual mediation, some experts feel that it can be important to have a mature child present when the final mediated agreement is signed. It can provide a sense that, despite lingering hopes a child may have, the marriage is really over, but that Mom and Dad are still taking care of them.
Who Determines How Much Visitation a Parent Gets?
Many people are confused by the process of determining child custody and visitation. It can be a stressful time, so confusion is only natural. But, many ask who gets to determine how much visitation a parent gets? Is it the court? The parent with custody? The parent seeking visitation? The child? A government agency?
The answer is really all of these people play a role in the determination. The court will almost always get the final say on custody and visitation. In almost every situation, the court will attempt to decide things in the best interest of the child. To do that, the court will look at factors like the parents’ respective mental and physical health, the child’s choice, the parent’s wishes, and which parent can provide the most stable and healthy environment for the child. At the point that primary custodial rights are assigned, who gets to determine visitation shifts a bit in a practical sense. In general, the parent with primary custodial rights over a child will get to decide what kind of visitation the other parent will have, so long as it is in compliance with the court’s order. If the other parent is unhappy with the visitation being provided by the custodial parent, they are often left with no option but to return to court – a time consuming and expensive proposition. As a result, from a practical standpoint, it makes much more sense for the non-custodial parent to simply try to work through visitation issues calmly and amicably with the custodial parent. Remember, it may be hard given all of the feelings tied up with your separation and dispute over custody, but is there anything you would not do for your child, including swallowing your pride and playing ball with your ex? If problems persist, you might even suggest using a mediator to help facilitate discussions.
What makes it on TV all too often is the story of the parents who allow communication to breakdown and one takes an inappropriate action against the other or takes the child without permission. This is never the solution and will always lead to more problems than it will solve. Moreover, this is the point at which governmental agencies are often involved. In many jurisdictions, various agencies may be responsible for policing visitation rights, safe and responsible parenting, and the interests of the children. There are many organizations that do this, including the police, and the reason they become involved varies widely, such as kidnapping, complaints about violations of visitations orders, reports of unsafe or unclean home environments for the children, etc. If called upon, these agencies may require one parent to allow the other to have visitation, may move the children from one home to another, may arrest a parent for taking too much visitation or kidnapping the child, or administer any number of other remedies.
Of course, at the end of the day, who gets to determine custody is primarily the parents themselves. Most courts take the parties’ wishes into consideration in rendering its custody and visitation orders. The conduct of the parties will affect how agencies will react when called upon to police custody and visitation issues. But, most of all, the parents’ ability to work together for the best interests of their children will be the best way for them to decide who will get custody and how much visitation is appropriate. Negotiate rather than fight. Talk rather than accuse. Compromise rather than allowing yourself to become needlessly entrenched. This is how truly effective visitation and custody arrangements will be worked out, will provide the best environment for your children, and will be will likely give each parent more time with their kids.
Of course, should you have a question regarding custody or visitation, you may wish to contact an attorney in your jurisdiction. The attorney may be able to suggest options unique to your situation and jurisdiction, and keep an eye out to protect your rights and the best interests of your child.
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.
In situations where parents share legal custody, the custodial parent will still have the final say on decisions where the parents can’t agree.
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 Family Court Consider a Child’s Preference?
A child’s preference is one of several factors a judge will weigh in a 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.
How To Make Custody And Visitation Schedule?
Creating a child visitation schedule in the State of Utah can be made easier by becoming familiar with the family law of the state.
The laws pertaining to child custody and visitation can be found in the Utah Code, Title 30, Husband and Wife, Chapter 3, Divorce.
The law explains the different types of custody, details what to include in a parenting plan, (including the child visitation schedule), outlines the criteria the court uses when making custody rulings, and defines some of the terminology used by the courts.
By studying some of the key points in the legislation, you will develop a better understanding of what to expect from the court and what the court expects from you. This will give you an advantage when creating your child visitation schedule.
Interstate Parenting Plans and Visitation Schedules
State jurisdiction over parenting plans
You must follow state custody guidelines and laws when you make your parenting plan. When parents live in different states, one of the states will have jurisdiction over the custody arrangements.
If you and the other parent agree on which state to file your parenting plan in, you should follow the guidelines of that state as you make your plan and custody schedule.
If you and the other parent do not agree on which state has jurisdiction over your custody arrangements, the Uniform Child Custody Jurisdiction and Enforcement Act determines which state has jurisdiction.
The Uniform Child Custody Jurisdiction and Enforcement Act says that a state court can decide custody arrangements only when at least one of the following is true:
• The child has lived in the state for at least 6 months, or the child had lived in the state until a parent recently moved them.
• The child has significant connections with people in the state, like relatives, friends and teachers.
• The child is in the state because there is fear of abuse, neglect or abandonment if in a different state.
No state can meet any of the criteria above.
Only one state can issue a custody judgment. If more than one state meets the above criteria, the state that makes (or has already made) the first custody decision will have jurisdiction. Other states will enforce that decision.
You cannot move your child to a different state to give that state jurisdiction over your custody case. If you do this, you will be denied custody.
Creating interstate parenting plans and visitation schedules
Once you’ve determined which state has jurisdiction over your custody arrangements, you can make your parenting plan and visitation schedule.
When you and your child’s other parent live in different states but still relatively close, you just need a standard parenting plan, and you have many options for your visitation schedule.
When your child must travel a long distance between parents (perhaps by plane), you need a long distance parenting plan. It should include information about how the child will travel, how the parents will pay for travel, terms for visiting the child at home, etc.
In a long distance visitation schedule, the child lives with one parent and visits the other. The amount of visitation depends on the family’s situation and the needs of the child.
Relocating after a plan is in place
When a family has a parenting plan in place but one parent moves a long distance or to a new state, the parents must make a long-distance plan.
If you are the custodial parent and you are relocating, you need to check the terms of your current plan to see where you’re allowed to move the child. If the noncustodial parent does not want you to move, you may have to go to court to sort it out.
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!
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