The Rights of a Parent
In Utah, the law recognizes the absolute rights of parents to have custody and control over their minor children absent a termination or suspension of parental rights. These rights are recognized by both the Utah and federal constitutions. Under both of those constitutions there must be a showing that a parent abandoned or neglected his child or that the parent is unfit to be a parent, before a court can interfere with those rights.
Parent vs. Nonparent Custody Battles
Sometimes a divorce includes a parent and a nonparent, but the nonparent has been a big part of his step-child’s life. For example, perhaps a mother married the step father when the child was only a few months old or very young and the step-father is the only father the child has ever known. In such a divorce a rebuttable presumption arise in favor of the natural parent. If the step-father wants to overcome that rebuttable presumption he must produce evidence that would overcome that presumption.
Specifically, the step-parent must show that the natural parent lacks the three characteristics that give rise to the presumption: (1) that no strong mutual bond exists; (2) that the parent has not demonstrated a willingness to sacrifice her own interest and welfare for the child’s; and (3) that the parent lacks the sympathy for an understanding of the child that is characteristic of parents generally. Hutchinson v. Hutchinson, 649 P.2d 38, 40 (Utah 1982). Absent such a showing, the natural parent will retain primary custody of the child.
Even in cases not involving a step-parent, such as in cases where the grandparents are seeking custody, the presumption in favor of the natural parent still applies. To overcome that presumption the grandparent must show that the three factors explained above are not present. The court cannot consider anything other than the three factors until the presumption is overcome. If the presumption is overcome then the court can consider other facts that are relevant to the best interests of the child.
One relevant fact that can go toward overcoming the presumption is if the natural parent had previously lost custody or had her custody rights suspended. In some cases, if the parent had previously lost custody then the parental presumption may not apply.
If you are involved in a custody dispute involving a parent vs. a nonparent give us a call. We’ll let you know how we can help.