Growing up in the 70s and early 80s, I did not know anyone whose parents were divorced. My first introduction to “child custody” disputes was from watching Kramer v. Kramer, the 1979 movie where the mom (Meryl Streep) abandons her husband and son but returns after 15 months to claim her child. The custody battle involved each parent’s lawyer viciously attacking the other parent’s character. It was traumatizing to watch. In the end, the court awarded the mom custody of the child even though she had abandoned the child and the father (Dustin Hoffman) had made dramatic changes to his life, including sacrificing his career, to care for his son.
For most of the 20th century, courts followed what has been called the “tender years” doctrine when awarding custody of children. The tender years doctrine is a legal doctrine that presumes a mother should be awarded custody of her children because young children need their mother regardless of the father’s involvement in the care of the child, the child’s bond to the father, or the child’s lack of bond with the mother. Luckily, the courts have evolved beyond the tender years doctrine and now determine custody based on the best interests of a child. But what does that mean?
Often, I hear clients during an initial consult explain that they need “sole custody” of their children because he or she has stayed home with the children or that he or she needs “joint custody” because that is the fair approach. But when asked what they mean by that, the clients do not fully understand. Most clients believe it just means where the children live.
Child custody involves two components. The first is legal custody, which involves decision making authority. It is the right of a parent to be involved in making long-term decisions about their child. The second is physical custody or where a child will reside.
Legal Custody
In Utah, there is a presumption that it is in the child’s best interests that both parents should be involved in all major decisions related to that child’s welfare. This typically involves decisions relating to medical issues, education, and religious upbringing. There are certain circumstances where joint legal custody (or joint decision making) may not work such as in a relationship where there has been domestic violence or where the parties live far apart. But generally it is expected that when an issue arises, each parent should be notified of an issue, talk through the options, and then arrive at a mutual agreement on how to address the issue. Most issues can be resolved this way but what happens if that is not possible? There are different approaches to resolving a disagreement including (i) giving one parent the right to make the final decision only after a discussion has occurred; (ii) attending mediation; (iii) giving a parent the right to make the final decision only after mediation is attempted; (iv) hiring a special master (usually an attorney) to make the decision; or (iv) giving neither party the right to make a final decision and requiring the issue be brought to the court if no agreement can be reached.
Physical Custody and Parent-Time
There is no such legal presumption relative to physical custody. Instead, the court looks at various factors when determining where the child should live. There are 17 specific factors that are to be considered including such things as (i) a parent’s demonstrated understanding and ability to meet the needs of the child including physical, emotional, education, medical and any special needs; (ii) the parent’s ability and willingness to co-parent including the ability to appropriately communicate with the other parent, the ability to encourage the sharing of love and affection, and willingness to allow frequent contact between the child and the other parent; (iii) who has been the primary caretaker of the child; (iv) the parent’s financial responsibility; (iv) the relative benefit of keeping siblings together; and. (v) the relative strength of the child’s bond with the parent. The non-exhaustive list of custody factors can be found here.
“Sole physical custody” means when one parent has less than 111 overnights with the children. The traditional parent-time schedule when one parent is designated the primary custodian includes a midweek visit from the time school is dismissed until 8:30 p.m., alternating weekends from Friday afternoon until Sunday evening, four consecutive weeks during the summer, and alternating holidays. Often, attorneys refer to this schedule the “30-3-35” schedule because the schedule is described in Utah Code Section 30-3-35.
“Joint physical custody” means when each parent has the children at least 30% of the overnights each year. There are a variety of joint custody arrangements. Several years ago, the Utah legislature enacted an alternative schedule where one parent’s midweek parent-time is overnight, the alternating weekend is from Friday after school dismisses until Monday morning when school resumes, four consecutive weeks in summer, and alternating holiday schedule where the children are returned when school resumes. This schedule gives one parent 145 overnights and the other parent 220 overnights. In other words, this is a 40/60 division of parent-time. This schedule is often referred to as the “30-3-35.1” schedule since it is described in Utah Code Section 30-3-35.1.
As of May 5, 2021, there is now an additional alternative schedule that a court may award that has the children spend equal time with each parent. This schedule can be found in Utah Code Section 30-3-35.2 and identifies specific factors that a court may consider when awarding a 50/50 custody arrangement. A court may award equal parent-time if the court finds that it is in the child’s best interest, each parent has been actively involved in the child’s life, and each parent can effectively facilitate the equal parent-time schedule. There are specific factors that the court is to consider when determining whether a parent has been actively involved in the child’s life including each parent’s demonstrated responsibility in caring for the child, each parent’s involvement in child care, each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities, each parent’s assistance with the child’s homework, and each parent’s involvement in preparation of meals, bath time, and bedtime. Some of the more common 50/50 custody schedules include (i) a “2/2/5/5 schedule” where the children reside with one parent every Monday through Wednesday morning, the other parent from Wednesday through Friday morning and alternating weekends from Friday through Sunday morning; (ii) “week on/week off” where the children reside with each parent for a week and exchange at a designated time such as on Friday or Sunday evening; or (iv) a “4/3/3/4 schedule” where one week the children reside with parent A for 4 days and reside with parent B for 3 days and the next week the children reside with parent A for 3 days and with parent B for 4 days.
In summary, custody means much more than where a child resides. It involves how much each parent will be involved in all aspects of a child’s life. Parents are also not restricted to the statutorily defined schedules. Parents can decide any schedule that works for their family. If the parents can agree, a court will adopt their schedule. It is the extremely rare case that a judge will reject the parents’ mutually agreed upon schedule. However, if the parents cannot decide then the court is more restricted and will likely adopt one of the schedules mentioned above.
