How does a court determine the best interests of the child?

Best Interests of the Child – The Standard by Which Custody is Measured

One of the greatest unknowns in a divorce proceeding is child custody. This is unfortunate as which parent a child will live with is one of the longest lasting and most life altering outcomes a divorce has on a family. It is this unknown that gives divorcing parents feelings of extreme discomfort, but the days of gender based custody are gone.

The court takes child custody very seriously in a divorce case and considers many factors in determining what sort of custody arrangement to order. Despite a common held belief, gender of the parent is not one of the factors in a custody determination in Utah. The pervasive and persistent belief that a mother’s care is preferred over a father’s care is largely a result of collective knowledge not keeping pace with the ever changing world of legal opinion. Before 1986, a concept known as the “tender years presumption” was the standard in the state. That concept presumed the mother was the proper person to be awarded custody of a young child. This could only be overcome by a finding the mother was unfit. The Utah Supreme Court in the case Pusey v. Pusey finally did away with that presumption when it found provisions of article IV, section 1 of the Utah Constitution and the fourteenth amendment to the United States Constitution precluded gender as a determining factor in making a custody determination. See Pusey v. Pusey, 728 P.2d 117 (Utah 1986).

The court now makes its determination on the best interests of the child.  The court finds relevant the (i) past conduct and demonstrated moral standards of each of the parties; (ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent; (iii) the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a  parent and child; (iv)whether the parent has intentionally exposed the child to pornography or material harmful to a minor; and (v) those factors outlined in Utah Code §30-3-10.2 (which outline the considerations for a joint custody order*). There is a rebuttable presumption that joint legal custody, is in the best interest of the child except in cases where there is domestic violence, special physical or mental needs of a parent or child making it unreasonable, physical distance between parents, or any other factor the court considers relevant.

When seeking custody, it is important to remember, absent extreme circumstances, a child is benefitted by a strong relationship with both parents. When a party’s conduct clearly demonstrates to the court they are not interested in keeping the other parent active in the child’s life, custody may not be entered favorably. Be nice, for the kids. This article contains general legal principles and is not intended as legal advice. If you need help navigating your case and the best interest of your child, contact an experienced attorney to help explain your rights and develop a strategy to help construct a custody arrangement that serves all parties, especially the kids.

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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