Are there Custody Factors A Court Must Consider?
Yes. A court is granted the sole authority for determining whether joint physical custody would be in the best interests of a child, but it is not solely at a court’s discretion. Instead, the court must carefully consider a number of statutorily prescribed custody factors to determine whether joint physical custody would be appropriate. Those factors are found in Utah Code 30-3-10.2 and include the following:
- The physical, psychological, and emotional needs of the child;
- The parents’ ability to work together and give the child’s needs priority. This includes the parents’ ability to communicate with one another, encourage the child to share love and affection with the other parent, and be willing to allow the child to have continuous contact with the other parent;
- Whether the parent was involved in raising the child before the divorce;
- How close the parents live to one another;
- For older children who are mature enough, whether the child prefers joint or sole custody;
- The parents’ ability to protect the child from conflict that arises between the parents; and
- The parents’ ability to make joint decisions regarding the child;
More often than not a court does not make a determination as to the custody factors above alone. Instead, in contested cases that are expected to go to trial, the court orders the parties to undergo a custody evaluation by a licensed custody evaluator. The custody evaluator will meet with the parents, spend time with the parents and children, interview the parents to determine their mental well-being, and conduct other research into the parent/child relationship to make a helpful recommendation to the court.
What it comes down to is the best interest of the child. The court is obligated to protect children and is not terribly concerned with the divorcing parties except to make sure a party is protected from abuse and given his or her equitable portion of the marital estate. But even then, the court will put the children of the marriage above the parties to the divorce if the choice comes down to that.
Does the Statute Create Any Presumptions in Favor of One Parent Over Another?
No. There is no presumption in favor of awarding divorcing parents joint or sole physical custody. Furthermore, there is no presumption in favor of a parent simply because of the parent’s gender. See Utah Code 30-3-10. The court looks at the issue with a clean slate without any predetermined judgments based on the parties simply because of who they are.