Child Custody and Support

Child Custody and Support

This article provides a broad overview of Utah child custody and child support laws. If you’d like to learn more, please do not hesitate to call us to schedule a free consultation.

Is the court more likely to grant custody to the mother or the father? If they don’t base the decision on gender, how does the court determine who gets custody? 

Utah Courts take child custody decisions very seriously. When considering custody of minor children, courts are not allowed to take into consideration the gender of the parent seeking custody. Instead, the court must decide what is in the best interest of the child, which is determined by looking at multiple factors. See Utah Code 30-3-10(1)(a). These factors include: (1) the parents’ conduct and moral standards; (2) which parent is more likely to act in the child’s best interest; (3) which parent is more likely to allow the child frequent and continuing contact with the other parent; and (4) the depth, quality, and nature of the relationship between a parent and child. See Utah Code § 30-3-10(1)(a). Courts will also take into account the wishes of the child, if they express any wishes, however, the courts are not bound by the child’s wishes.

Even with these factors, the courts are still unlikely to grant sole custody to one parent or the other. Instead, under Utah law, there is a “rebuttable presumption that joint legal custody…is in the best interest of the child.” Utah Code 30-3-10(1)(b). Common exceptions to this general rule include: (1) domestic violence in the home; (2) special physical or mental needs of a parent or child; and (3) physical distance between the residences of the parents. Utah Code 30-3-10(1)(b)(i)-(iii).

What is joint custody and what is sole custody?

There are two types of custody, physical custody and legal custody. Physical custody means that the parent has the child living with them in their home. Legal custody means that the parent has the right to make important decisions for/about their child. When issuing a custody order, courts can issue any of the following types of orders: (1) sole legal and sole physical; (2) joint legal and joint physical; (3) joint legal and sole physical; or (4) split custody.

Sole legal and sole physical custody means that either parent will be awarded sole custody of the child. That means that the parent with sole custody will have the child live with them, will make important decisions for the child such as which school to send the child to, where the child should be raised, and other important decisions such as medical treatment. If the court awards sole custody to one parent, the other, non-custodial parent, is usually still awarded visitation rights with the child (also known as “parent time”).

Joint legal and joint physical custody means that both parents share equally in the decision-making process for their child and the child lives with each parent at least 111 nights a year.

Joint legal and sole physical custody means that the child lives with only one parent, with the other parent likely having visitation rights, but the decision making is shared equally between the parents.

Split custody is awarded in cases where there is more than one child. In a split custody order, each parent is awarded sole physical custody of at least one of the children and legal custody may or may not be shared as ordered by the court.

How is Utah child support determined?

Utah has established Child Support Guidelines that will assist a court in calculating a parent’s child support obligation. Utah Code 78B-12-301 provides a base for calculating child support and uses both parent’s monthly combined adjusted gross incomes, along with the number of children, to determine the base amount of child support that is necessary to support the child. After making the determination of how much is needed to support the child, the court will then allocate the amount between the two parents according to their respective incomes. The non-custodial parent will then pay the custodial parent the set amount of child support as determined by the court.

While there is a guideline for determining the base amount of child support, the courts have discretion in changing the amount based upon any circumstances that the courts find relevant. This could include any additional medical costs or child care expenses that would be higher than usual for that particular child.

Can a parent refuse to allow visitation if child support is not paid?

No. One parent cannot deny the other parent’s right to visitation of the child in contravention of the court order. If the parent attempts to deny visitation to the other parent, the parent seeking visitation may file a motion with the court asking the court to enforce the order. If a court is forced to intervene in these matters, the court has the ability to find a party in contempt for failing to comply with the custody order and can order the non-compliant party to pay a fine or serve time in jail.

How can I enforce the Utah child support order?

Similarly to refusing visitation, if a parent refuses to pay the ordered amount of child support, the parent seeking the child support may file a motion with the court asking the court to enforce the child support order. The court may order the party to pay the child support along with additional fines, and may also hold the party in contempt.

Can my child decide which parent to live with?

While the court will take into consideration the wishes of the child when it makes a custody determination, the court is not bound by the child’s wishes. Furthermore, the court will only consider the child’s wishes if the child is sufficiently mature to express his or her own opinion on the matter—the lower age limit is usually 14 years old.

I am in the middle of a custody suit and I am afraid that my ex will try and leave the state with my child before custody is finally determined, is there any way I can prevent that?

Many states call this action “custodial interference” and it is a crime in some states. Under Utah law, “custodial interference” is a criminal offense, however, it only becomes a crime once the court has already issued a custody order and the parent takes the child away in contradiction to the custody order. Therefore, if you are afraid that your child may be taken away by the other parent prior to a custody order being put into place, it is important to bring this fear to the attention of the judge handling your case. Under Utah Code 78B-13-204(1), a court may issue a temporary emergency order if the child is present in the state and  it is “necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” The court may also issue a restraining order restricting either party from leaving the state with the child before the final custody decision has been made.

How can I modify my custody agreement?

A custody modification is a complex and difficult process. Before even beginning the process, you have to make sure you are filing for the modification in the right jurisdiction and in the right court. This first step is largely controlled by each state laws, and you should consult with an attorney to make sure you are filing your petition in the appropriate court. For a link to the forms necessary for filing for a custody modification, go to this website: http://www.utcourts.gov/howto/family/modification/custody/#forms

In order for a court to grant a custody modification, the court will generally require that there be a “substantial change in circumstances” since the original custody order was issued and that changing the order would be in the best interest of the child. In considering the best interest of the child, the court will look at the same factors that it does during the original custody hearing.

Which state can I file my request for a custody modification in?

This can be the most complicated part of the process—figuring out which court has jurisdiction over the custody agreement. In order to decide which court is the right court, Utah Code lays out several guidelines in section 78B-13-202 & 203. Once you have figured out which jurisdiction to file the petition in, you then must ask whether the petition should be filed in the district court or the juvenile court. Typically, whichever court issued the order will be the court that has jurisdiction to hear a petition to modify the order.

Michael Hepworth

Michael Hepworth

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

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