My kid’s mom moved away right after our divorce for 1 year and came back to UT. She has been here for a little over 2 years. I gave her an extra day during the week so she gets Tues, Wed and every other weekend, but the kids are home every night (Except Fri & Sat night on her weekends). Now she told me I need to go to a mediator so we can write up joint custody papers. I said no. She has retained an attorney. My understanding was unless there was harm done to my kids she couldn’t get custody away from me.
Joint custody can mean many things. Recently, the Utah legislature has passed laws establishing a presumption that legal joint custody is in children’s best interests. Legal custody means making decisions, sharing information and involving the other parent in the children’s lives. This last session, the legislature has passed a new joint physical custody alternative to the minimum parent time guidelines in UCA Section 30-3-35. That section is now UCA Section 30-3-35.1. That law comes into effect on May 12, 2015. It provides that if the court finds that the non custodial parent has participated significantly in caring for the child and that the parties are capable of communicating with each other about the children’s need the court can use a minimum parent time schedule of 145 nights during the year.
Although your ex-wife cannot force you to sign custody papers, she can file a petition to modify custody. The court will allow the case to go forward because she is now living within 150 miles of the children. Since she can ask for a modification, the real question here is whether the court will give her joint custody. This determination is fact sensitive and should be made in consultation with an attorney who has all of the information. But based on the trend described above, the answer in most cases will be yes. That does not mean, however, that she will have joint decision making power. Generally the court will allow the primary custodian to have the last say in making decisions about the care of the children.
On the issue of joint physical custody, the determination is also fact sensitive. However, the court certainly will enforce your agreement to allow her Wednesdays and Thursdays. The bigger question will be overnights. Under the new statute the court could give her Wednesdays over night every week and Sunday over night every other week. Another likely outcome would be to give her half of the summer. For other tips on what should be in your modified custody order click on the link “Custody Order” below.