Experts agree that kids need both of their parents in their lives. Unless the parents remain good friends and really strive to work together to support the child or children in a shared or “Joint Physical Custody” arrangement, the Court must make the difficult decision about which parent will have the child or children reside with them. The parent with whom the child lives is known as the “Custodial” parent. The Court may designate this parent as having “Primary Physical Custody” or “Sole Custody”. Except for issues regarding the visitation rights of the non-custodial parent, the parent with Primary Physical Custody has the “final say” in most decisions related to the child or children. It is important to obtain the first custody order in your favor because the Court will not change or modify custody decisions without substantial reasons to justify a change. The Custody Issue may be addressed through a Motion For Temporary Orders Hearing – which can happen months or even years before the divorce goes to trial. The parent who is assigned the initial “Primary Physical Custody” will probably continue to have the child live with them until the child reaches the age of adulthood. This inertia can be overcome, but it is an uphill battle unless the custodial parent does something that harms the child or fails to provide protection from harm for the child.
Ultimately, the Court is supposed to handle issues involving children according to the “Best Interests of the Child” standard.There are statutes in Utah regarding what factors are to be considered in deciding which parent should have primary custody (See Utah Code 30-3-10), minimum visitation for the non-custodial parent who lives within 150 miles of the custodial parent (See Utah Code 30-3-35), and minimum visitation for the non-custodial parent who lives more than 150 miles away from the custodial parent. (See Utah Code 30-3-37 which is also known as the “Relocation Statute”.) There are many factors that must be considered, and we strive to understand and even to explore all the reasons why our client feels that they should have Primary Physical Custody. We cannot win every case, and so we try to give our potential clients a reasonable assessment in the Free Initial Consultation – to help them decide whether to ask for custody or to negotiate for the most favorable terms as the non-custodial parent.
Legal Custody is an entirely different matter. This should not be confused with Physical custody (which the above paragraphs talked about). The Divorce Decree, Paternity Decree, or Modification of Custody Order documents should assign both Physical and Legal Custody. Joint Legal Custody is the standard in Utah. Unless there are strong reasons why one of the parents should not have any say in decisions related to the minor child or children, the Court should award Joint Legal Custody. With Joint Legal Custody (and well written custody documents), the non-custodial parent’s contact information should be entered into any school registration documents and listed in any context where an emergency contact is requested. It is important to be listed on the school registration documents so that you have access to your child’s academic records. It is also important for doctors, dentists, and hospitals where the child or children may be treated to know your contact information so that they can reach you in an emergency – and so that if the child is hospitalized, you are immediately allowed to visit the child and be involved in medical decisions regarding the child’s treatment.