Child custody is one of the most fought over issues in family law. These fights can negatively affect the children. Therefore, it is always in a child’s best interest for the parents to settle the custody disputes without litigation. In doing so parents will also save quite a bit of legal expense.
Physical and Legal Custody
There are two kinds of custody, physical and legal. Physical custody pertains to where the child will live. One parent can have sole physical custody or the parents can enjoy joint physical custody. The trend in the law is for joint physical custody. However, joint physical custody only works when parents live fairly close to each other, and pick up and drop off of the children to their school and homes is relatively painless.
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Joint physical custody exists when one of the parents enjoys 110 overnights or more with the child during a given year. Joint custody need not be 50-50, and can be tailored to fit the needs of the parties and the child. Sometimes a parent cannot enjoy joint physical custody due to his or her employment or living arrangement. In that case if the parties cannot agree on who will be the primary caregiver, the court decides what the physical custody arrangement will be.
Legal custody involves which parent has the right to make decisions for the child. There is a strong preference for joint legal custody, where both parents share in the decision making process. When parents have a hard time deciding what is in the child’s best interest, the court can award either sole legal custody or allow one parent to have final decision making authority. Another possibility is for one parent to have exclusive or final decision making authority over certain areas, e.g., medical issues, while the other has the same authority over another issue, e.g., educational issues.
Hiring a Custody Evaluator
Parties can hire a custody evaluator as an expert witness to render a recommendation to the court regarding custody. The parties can also ask that a private guardian ad litem be appointed who serves as the child’s advocate, and who can also make a recommendation to the court for custody.
Some of the statutes involving custody are as follows: Utah Code Sections 30-3-10, 10.1 and 10.2. When either party desires a joint custody arrangement, he or she must file a parenting plan with their petition for divorce or parentage. Utah Code Section 30-3-10.7 addresses parenting plans.