WHAT HAPPENS WITH MY
KIDS WHEN I FILE FOR
DIVORCE?

This is typically the first big question when anyone considers divorce: What happens with our kids? The answers lie in the laws and rules regarding child custody. In Utah, the term “child custody” refers to the legal ability and right of parents to rear, care for and make decisions regarding a minor child. This includes making decisions about where a child lives, where a child attends school, what medical treatment a child receives and what sort of religious upbringing a child experiences. As you can imagine, trying to come up with answers to these questions can create conflict.

To simplify the discussion, you must first know that custody consists of two parts: physical and legal custody. Physical custody is where your children live when; this is the parent time schedule for the parents. Legal custody is the ability to make decisions on behalf of the children. Let’s talk about each one in a little more detail.

Physical Custody

There are two basic physical custody possibilities: Sole or Joint. Sole physical custody means that one parent has 110 or fewer court-ordered overnight visits in a year; a joint physical custody award means that each parent has more than 110 court-ordered overnights during a year. Under a sole physical custody order, the non-custodial parent has parent time one evening per week (Tuesday, Wednesday or Thursday) from the time the parent and child are available (i.e., after work or school). The non-custodial parent also has overnight parent time every other weekend, beginning on Friday when the parent and child are available through Sunday evening at 7:00 p.m. Here is an example of the standard parent time schedule under a sole physical order; in each one, M=Mother and F=Father.

Sole (Standard Minimum):

As you can see, that does not give a lot of time for the child to be with the non-custodial parent. For that reason, more and more child psychologists are recommending that children have more time with the non-custodial parent, which gets into the joint custody schedules.

Under a joint custody parent time schedule, there can be a wide range of options. You just have to make a schedule that provides each parent with more than 110 overnights during a year’s time. The legislature created a alternate minimum parent-time schedule which meets the standard and also works to give the non-custodial parent more involvement with the children and the everyday features of their lives, like homework, chores, bedtime on school nights and the like. (See Utah Code Annotated § 30-3-35.1)

However, the court should not just treat this schedule like every parent asking for it should get it. The statute sets forth a specific list of things that a parent asking for a joint custody schedule should be able to show, things like involvement in the child’s medical treatment and school, participation in bedtime and meals, flexibility of employment, etc. That way, children who are used to having significant involvement from both parents can continue that way of living. Here is a chart showing the optional joint custody parent time schedule:

Joint (Alternate Minimum):

Finally, there is the equal physical custody schedule. The court will also consider this when it is in a child’s best interest and when parents can demonstrate that they have been equally involved in the rearing of their children. Here is a chart showing what equal custody can look like:

Joint (Equal Custody or 50/50):

Legal Custody

Legal custody deals with who makes decisions about a minor child. In Utah, there is a presumption that joint legal custody is in the best interest of a minor child. Under joint legal custody, both parents are to counsel together regarding a decision. If the parents are unable to agree on the outcome, then they can participate in mediation to try and work it out then. If mediation is unsuccessful, the parent with more overnights is permitted to make the decision, subject to the right of the other parent to take the decision to the court for review.