If you haven’t personally gone through a divorce or custody battle, there is no doubt you know someone who has. Those who have can tell you their story and may even tell you “how it is”. The key words there are “their story”. Everyone’s story will be different.
Custody designations are very fact sensitive and most people have a different set of facts from others. The court will take those facts and apply them to the law.
If you are facing the prospect of a child custody battle, and you wonder what your outcome will look like, it helps to understand what the courts look for.
There are myths:
First and foremost, dispel some of the things you think you know about the law of child custody. Many people believe that because this is Utah (a fairly conservative state), a court will automatically defer to the mother because (only because of) she is the mother. This notion may have been true in the past, it certainly is not now.
The child custody determination statute is very clear that the mother is not to be presumed the custodial parent simply because she is the mother. It is actually against the law in Utah to give mother custody just because she is the mother, without other considerations.
What does the court consider?
As a jumping off point, it’s important to understand that the State of Utah has a strong public policy to keep the children with both parents and encourage a strong bond between them. With that goal in mind, the state legislature has crafted a number of factors judges must take into consideration when determining custody. All of those factors have one thing in common – you’ve heard the phrase… “the best interests of the child”.
This simply means, are the parents doing what is best for the child? This is an important question with far-reaching implications. For instance, a court will consider a parent’s willingness to protect children from a conflict that arises between the parents.
Child Custody Considerations of the Court
In other words, when a couple has a quarrel, does one of them go to the children to bad mouth the other or, do they do their best to insulate the children? Does one parent encourage a strong and healthy relationship between the kids and the other parent?
These areas are where many people drop the ball when it comes to gaining custody. Not because they intend to, necessarily, but when divorce becomes a reality, most people are inclined to want to be the good parent in the eyes of the children, so it’s easy to paint the other in a bad light.
The easier things to avoid are the obvious triggers. Are the parents keeping kids out of harm’s way? Harm to the children, remember, comes in many flavors. Are the kids being exposed to drugs or alcohol abuse, pornography, etc.?
The hard choices for the court
Now that you have some ideas of what a court will consider when looking to how fit the parent is, the court will have to make some very practical choices. After all, the parents are going two different directions, but the kids can’t be in two places at once. So, how does a court decide which direction to send them?
Some important considerations are such as, prior to the separation of the parents, who was the primary caretaker – who fed the children, who took them to school, who went to parent-teacher conferences, soccer games and even, who does the child cry out for when they are frightened?
The Court’s Decision-Making Process
The court will try to use Solomonic wisdom even though it can’t literally “split the baby”, but it will try to determine which parent (apparently) cares more. Since the court can’t literally know the hearts and minds of the parents, it can only decide based on what evidence it sees.
Staying on the practical side of things, the court will also take into consideration how the children will live after the separation. Does dad have a home with a bedroom for the children or is the dad in a studio apartment with the child sleeping on the recliner? Are both parents equally able to get the children to school? How far away do parents live from one another? Answers to questions such as these won’t be dispositive, but they are important considerations.
You can get the sense that the court will consider many, many factors – all with the purpose of drawing a complete picture, with the overarching goal of doing what is in the best interests of the children.
A couple of parting thoughts
Suppose mom walks away and takes children with her. Dad should never stop trying to see the kids.
Make every effort possible, without disturbing the peace, to visit the kids. The court will want to know how much dad tried, if he tried, to see the kids. Did mom refuse? Why? If she did, without good reason, this will look bad on her part. This question, of course, goes both ways. If the other parent isn’t a danger to the children, it’s important to foster the relationship between the children and the other parent.
If you or someone you know is immediately facing a separation where the custody of minor children will be an issue, do not go it alone. Having a good lawyer can mean the difference between joint physical custody and minimum parent-time. Make sure the court gets the full picture.