What Types of Custody are Awardable?
Child custody issues arise in divorce, legal separation, protective orders, child abuse cases, and paternity cases. Two types of child custody must be considered: legal custody and physical custody. Legal custody has to do with a parent’s “rights, privileges, duties, and powers,” regarding a child, including authority to make decisions. Physical custody has to do with where the child will live. The trial court has broad discretion to determine custody.
The court is to make a child custody order in cases where the parties are separated or where a marriage is declared void or dissolved. The court is to consider the best interests of the child, the “past conduct and demonstrated moral standards of each of the parties”, willingness to share the child with the other parent, bonding, and the best interest factors considered in a joint custody determination. Desires of the children may be considered, but are not controlling. The desires of a child 16 years old or older is to be given additional weight, but is not the controlling factor. The court is to consider whether or not a parent truly desires custody. A court is to avoid discrimination against a parent, due to a disability, in awarding custody.
There can be joint, split, or sole physical custody. Joint physical custody means that both parents have periods of time during which the children reside with them. Split physical custody “means that each parent has physical custody of at least one of the children.” Sole physical custody is where one parent has all of the children residing with them and the other parent has some type of parent-time rights.
A presumption favors natural parents and adoptive parents over nonparents. That presumption may be rebutted by evidence that: (1) no strong mutual bond exists, (2) the parent has not demonstrated a willingness to sacrifice their own “interest and welfare” for the child, and (3) the parent lacks sympathy and understanding of the child. Once that presumption is rebutted the custody decision is made based on “the best interests of the child.”
The court is to make a child custody order in cases where the parties are separated or where a marriage is declared void or dissolved. The court is to consider the best interests of the child, the “past conduct and demonstrated moral standards of each of the parties”, willingness to share the child with the other parent, bonding, and the best interest factors considered in a joint custody determination. Desires of the children may be considered, but are not controlling. The desires of a child 16 years old or older is to be given additional weight, but is not the controlling factor. The court is to consider whether or not a parent truly desires custody. A court is to avoid discrimination against a parent, due to a disability, in awarding custody.
There can be joint, split, or sole physical custody. Joint physical custody means that both parents have periods of time during which the children reside with them. Split physical custody “means that each parent has physical custody of at least one of the children.” Sole physical custody is where one parent has all of the children residing with them and the other parent has some type of parent-time rights.
A presumption favors natural parents and adoptive parents over nonparents. That presumption may be rebutted by evidence that: (1) no strong mutual bond exists, (2) the parent has not demonstrated a willingness to sacrifice their own “interest and welfare” for the child, and (3) the parent lacks sympathy and understanding of the child. Once that presumption is rebutted the custody decision is made based on “the best interests of the child.”
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The foregoing information is general, non-case-specific information and is not intended to constitute legal advice or to form an attorney-client relationship. We provide aggressive, competent representation in all areas of divorce and family law, including child custody, visitation, child support, alimony awards, modifications, guardianships, adoptions, prenuptial agreements and all related matters. To schedule an appointment with one of our attorneys, please contact our office at 801-377-4652.
Courtyard at Jamestown
3575 North 100 East
Suite 325
Provo, Utah 84664
Phone: 801-377-4652
Fax: 801-377-4673
3575 North 100 East
Suite 325
Provo, Utah 84664
Phone: 801-377-4652
Fax: 801-377-4673
