Matthew C. Brimley

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Child Custody


One of the most difficult issues that a court will have to address in any divorce is which parent should have physical custody of the children.  There are three types of custody in Utah.  Sole custody means that one parent has the physical custody of the child and the other has parent-time. Split custody means that one parent has physical custody of one or more of the children and the other parent has physical custody of the rest. Joint custody means that both parents share physical custody.  Joint custody can be established many ways. Some parents trade each week, some trade during a year.
In Utah, before parents will be granted an order of joint custody, they must develop a parenting plan.
Utah recognizes several custodial arrangements for minor children. Either party can be awarded the "sole" custody of the children. That means one parent has physical custody of the children and makes the major decisions regarding the children's lives. "Joint" custody can be divided into two types, "legal" and "physical" custody. Joint "legal" custody can have several interpretations and, minimally, means that both parents make joint decisions regarding major issues affecting the children. Joint legal custody does not affect the physical residence of the children. Joint. "physical" custody means that the parties share physical time with the children and that the children live in both homes. Either form of joint custody usually works best when the parents are willing to work together to address the needs of the children. Joint physical custody normally requires that the parents live in the same town or general area. Sometimes, parents will agree to a joint custody arrangement that designates one parent as the "primary" parent. Parents can fashion any custodial or visitation arrangement that they believe is in their children's best interest, and the court will allow that arrangement to be part of the Decree of Divorce.
If sole custody is awarded, the non custodial parent is awarded "visitation" with the children. Utah has a "standard schedule of visitation" which allows weekly contact, alternating holidays, and on alternating weekends, overnight visits for children five and older. Parties can vary from the standard schedule and create any schedule of visitation that they deem appropriate for them and the children's needs. Schedules often have to vary depending on the ages of the children and bow far apart the parents live. Visitation to be exercised with children under five is dependent upon what is in the best interests of the children.
Custodial parents may not withhold rights of visitation if child support is not being paid. Likewise, child support is not to be withheld if visitation is being denied. There are sanctions that the court can impose on a custodial parent that prohibits visitation.